ML20058D571
| ML20058D571 | |
| Person / Time | |
|---|---|
| Site: | Oyster Creek |
| Issue date: | 11/02/1993 |
| From: | Mantzaris C COMMERCE, DEPT. OF, NATIONAL OCEANIC & ATMOSPHERIC |
| To: | Murley T Office of Nuclear Reactor Regulation |
| Shared Package | |
| ML20058D569 | List: |
| References | |
| NUDOCS 9312030212 | |
| Download: ML20058D571 (6) | |
Text
{{#Wiki_filter:170.S$2SL [ \\ UNITED GTATED DEPARTMENT CF CEMMERCE National Oceanic and Atmospheric Administration %,.(..,/ , NATIONAL MARINE FISHERIES SERVCE i ' Habitat and Protected Resources Division One Blackburn Drive Gloucester, MA 01930 November 2, 1993 Dr. Thomas E. Murley, Director Office of Nuclear Reactor Regulation 12-G-18 OWFN U.S. Nuclear Regulatory Commission Washington, D.C. 20555
Dear Dr. Murley:
Section 7 of the Endangered Species Act (ESA) requires Federal agencies to consult with the National Marine Fisheries Service (NMFS) regarding activities that they conduct, fund, or authorize that may affect listed species under NMFS' jurisdiction.
- NMFS, the NRC, and personnel from the Oyster Creek Nuclear Power Plant in New Jersey have been informally consulting on the affects of the operation of the Oyster Creek Plant since 1992, when takes of endangered Kemp's ridley (Lepidochelys kempi) and threatened loggerhead (Caretta caretta) sea turtles were first observed.
Due to information discussed below, NMPS believes formal consultation is now necessary. A Biological Assessment, described in the enclosed regulations, should be prepared and submitted to NMFS by the spring of 1994 to allow us to conclude consultation prior to the late summer, when sea turtle impingements are possible. Sea turtle impincements: On October 17, 1993, a fresh dead Kemp's ridley was discovered at the Oyster Creek Nuclear Power Plant in Forked River, New Jersey. Three sea turtles were also taken in 1992: a live loggerhead turtle taken twice in September, 1992, a live Kemp's ridley turtle taken October 26, 1992: and a dead loggerhead with deep propeller wounds was impinged on the intake structure on June 25, 1992. As a result of the sea turtle takes in 1992, the Oyster Creek staff was asked to review impingement data from the power plant as well as from biological sampling conducted in the adjacent waters of Barnegat Bay for historical information on the occurrence of sea turtles. No sea turtles were recorded in 16,500 hours of impingement sampling between 1975 and 1985 at the plant, and no sea turtles were taken during trawl and seine ~ sampling cruises throughout Barnegat Bay between 1975 and 1981. In addition to dedicated sampling, intake structure inspections are conducted at least once per 8 hour shift year-round, with additional effort between May and November of each year when, I e \\ i s 9312030212 931119 -+ PDR ADOCK 05000219 PDR p
fouling requires high maintenance. No sea turtle takes were observed beyond those discussed above. In summary, while listed species did not appear to occur in the waters adjacent to the Oyster Creek Power Plant historically, recent impingements indicate increased sea turtle abundance in adjacent waters since 1992. Formal consultation, pursuant to Section 7 of the ESA, is required to assess the level of impact that operation of the plant may have on listed species. l Colleen Coogan of my staff will continue to work with Michael Masnik, with NRC, and Malcolm Browne, with Oyster Creek, to expedite the consultation process. Please call Ms. Coogan at (508) 281-9291 if you have any questions regarding this information. Sincerely, 7 / ,/ 60 CV'1 ristoph Mant.cris Acting Div (ision ief 3 5 t P Enclosure cc w/ enclosure: Masnick - NRC Barton - OCNGS Browne - OCNGS l cc w/o enclosure: Beach - F/NEO2
5e, .rp Federal Register / Vol. 51. No 106 / Tuesday, June 3.1966 / Rules and Regulations 19957 requirements as defined by the programs must comply with applicable 226. Endangered or threatened species Paperwork Reduction Act.ne analyses permit requirements (50 CFR Parts 17 under the jurisdiction of the NMFS are under Executhe Order 12291 the 220. 222. and 227) for listed species and located in 50 Cm m n(s) and 227.4. If Regulatory flexibility Act, and NEpA should be coordinated with the the subject species is cited in 50 CFR are available to the public at the Office appropriate Secretary. Section 7(e)(2) of 222.23(a) or 227A. the Federal agency of Endangered Species. U.S. Fish and the Act requires every Federal agency. shall contact the NMFS. For all other Wildhfe Service, at the address listed in consultation with and with the listed species the Federal Agency shall above. assistance of the Secetary, to insure contact the FWS. that any action it authorizes, funds, or IJst of Subjects in 50 CFR Part 402 carries out. In the United States or upon j #2h2 DeM5ms. Endangered and threatened wildlife, the high seas, is not likely to jeopardize "Act" means the Endangered Species Fish. InterEovernmental rela tions. Pla nts the continued existence of any listed Act of 1973, as amended.18 U.S.C.1531 (agriculture). species or results in the destruction or et seq. adverse m dification of critical habitat. " Action" means all activities or Regulation Promulgation Section 7(a)(3) of the Act authorizes a programs of any kind authorized. Accordingly, the Service revises 50 pmspective permit or license applicant funded. or carried out. In whole or in Cm Part 402 to read as follows: to request the issuing Feocral agency to part, by Federal agencies in the United "I*f I '"dY "8"N8 "" PART 402-INTERACENCY States or upon the high seas. Examples include, but are not limited to:(a) COOPERATION-ENDANGERED r ine vhe ctio is likely SPECtES ACT OF 1973, AS AMENDED to jeopardize the continued existence of 'g" # bi mpart aned listed sp:c!es or result in the destmction promulgation of regulations:(c) the e or adverse modification of critical granting of licenses, contracts. leases, habitat. Section 7(a)(4)'of the Act casements, rights of-way, permits, or Q requires Federal agencies to confer with grants-in-tid; or (d) actions directly or the Secretary on any action that is likel to jeopardize the continued existence f indirectly causing modifications to the Sol.23 Applicabihty. to:D4 Counterpart regulations. ld tem air, som Emergencies. proposed species or result in the co:D6 Coorenation with other destruction or hdverse modification of ,, Action area,, means all areas to be environmental reviews. proposed critical habitat. Section 7(b) of aHected directly w in&recdy by 6e to D7 Designation of lead agency. the Act requires the Secretary, after the Federal action and not merely the, immediate ares innlved in the actmn., co D6 Designaum of amTedeM conclusion of early or formal representative. consultation. to issue a written " Applicant" refers to any person, as statement setting forth the Secretary's defined in section 3(13) of the Act, who n opinion detailing how the agency action requires formal approval or Subpart hConsurtsom Pmeehes affects listed spedes or critical habitat authorization from a Federal agency as a02.10 Conference on proposed species or Biological assessments ane required a prerequisite to conducting the action proposed critical habitat. under section 7(c) of the Act if listed . "Blological assessment" refers to the entt Early casultation-spedes or critical habitat may be information prepared by or under the h" ""'*amde t. present in the area affected by any - direction of the Federal agency g, majw custmetion activity as dermed in concerning listed and proposed species 40:ue Formal mnsultatioa 401.15 Responsibilities of Federal agency 140002. Section 7(d) of the Act prohibits and designated and proposed critical fonowing tuuana of a teological Federal agencies and applicants from habitat that may be present in the action opinion. Inaking any irreversible or irretrievable area and the evaluation potential effects 402.18 Reinitiation of formal omsultation. commitment of resources which has the of the action on such species and Authortry: to U.S.C.1531 er seg. effect of foreclosing the formulation or habitat. implementation of reasonable and " Biological opinion"is the document Sut>part A-General prudent alternatives which would avoid that states the opinion of the Service as le par & zing the onunued eadstence of to whether or not the Federal action is g 402_01 scope. (aWs Part interprets and estruct or d e tion ef implernents sections 7(a}-{d) {16 U.S.C. critical habitat. Section 7(e}-(o)(1) of the 'h' d'" " .
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1536(aHd)1 of the Endangered Species Act pmvide procedures for mm. f criti alhabitat Act of 1973. as amended ("Act"). Section exemptions from the mquirements of . " Conference is e process which-7(a) grants authority to and imposes section 7(s)(2). Regulations governing annives infwrnal &,scussions betweers a requirements upon Federal agences the submission of exemption regardmg endangered or threatened ,p'plicadons are found at 50 Cm part. Federal agency and the Service under species of fish, wildlife, or plants 451, and regulations governing the secdon 7(aM) of 6e Act regar&ng 6e (" listed species") and habitat of such exemption process are found at 50 CR impact of an action on proposed species parts 450. 452. and 453. or proposed critical habitat and species that has been designated as recommendations to mmimize or avoid critical (" critical habitat"). Section (b) ne U.S. Fish and Wildlife SW the adverse effects. 7(a)(1) of the Act &rects Federal (FWS) and the National Marine agencies. In consultation with and with Fisheries Service (NMFS) share " Conservation recommendations" are the assistance of the Secretary of the responsibilities for administering the suggestions of the Service regarding Interior or of Commerce, as appropriate. Act.De lists of Endangered and discretionary measures to minimize or to utilir.e their authorities to further the Rreatened Wddlife and Plants are avoid adverse effects of a proposed purposes of the Act by carrying out found in 50 CFR 17.11 and 17.12 and the action on listed species or critical conservation programs for hated designated critical habitats are found in habitat or regarding the development of species. Such affirmative conservation 50 CFR 17.95 and 17.96 and 50 CR Part information.
Federal Register / Vol. 51. No.106 / Tuesday. June 3.1986 / Rules and Regulations 19959 obligations to cornply with the satisfied.This provision does not apply shall be documented by the Service and procedures set forth in this part or the to the conference requirement for provided to the Federal agency and to substantive requirements of section 7. proposed species or proposed critical any applicant.The style and magnitude r ne Service will attempt to provide a habitat under section 7(a)(4) of the Act. of this document will vary with the coordinated review and analysis of all complexity of the ccaference.lf formal environmental requirementa. Subpart B--Consuttation Procedures consultation also is required for a (b) Where the consultation or I a02.10 Conference on proposed species particular action. 6en the Service will conference has been consolidated with or proposed crtocamahnet, provide the results of the conference the interagency cooperation procedures (a) F.ach Federal agency shall confer with the biological opinion. required by other statutes such as NEpA w th the Savice on any action which is ya%mm or FWCA. tbc results should be included likely to jeopardize the continued (a) Purpose. Early consultation is in the documents required by those existence of any proposed species or designed to reduce the likelihood of statutes. result in the destruction or adverse c aflicts between listed species or { a02.07 DehgneGon of lead agency. modificatim of proposed critical critical habitat and proposed actions habitat.%e conference is designed t and occurs prior to the filing of sn When a particular action involves at e al age a" application for a Federal permit or more than one Federal agency, the UI I"8 d vbg Y license. Although early consultation is consultation and conference potenday cemets at an cady stage in conducted between the Service and the responsibilities may be fulfilled through a lead agency. Factors relevant in "r abcy shah hddate Federal agency, the prospective applicant should be involved throughout determining an appropriate lead agency the conference with the Director.%e the consultaba process. include the time sequence in which the Service may request a conference if. agencies would become involved, the after a review of available information. (b) Request by prospective cpplicant magnitude of their respective It determines that a conference is If a prospective applicant has reason to involvement ahdtheir relative expert. required fu a particular actim believe that the prospectivtt action may se with respect to the environmental (c) A conference between a Federal affect listed species or critical habitat. It effects of the action.%e Director sha!! agency and the Service shall consist of may request the Federal agency to enter be notified of the designation in writing informal discussions concerning an into early consultation with the Service. by the lead agency. action that is likely to jeopardize the ne prospective applicant must certify Ia02.os De8gnanon of norgedersi .centinued existence of the proposed in writing to the Federal agency that (1) representanva. species or result in the destruction or it has a definitive proposal outlining the A Federal agency may designate a adverse modiScation of the proposed action and its effects and (2) it intends non-Federal representative to conduct critical habitat at issue. Applicants may toimplementits proposal.If authorized. Informal consultation or prepare a be involved in these informal (c) Initiotion of early consultotion. If ~ biological cssessment by giving written discussions to the greatest extent the Federal agency receives the notice to the Director of such practicable. During the conference, the prospective applicant's certification in designation. If a permit or license Service will male advisory paragraph (b) of this section, then the applicant is involved and is not the recommendations,if any, on ways to Federal agency shah init. ate eady. designated non-Federal representative, minim!ze or avoid adverse e;ffecta,if the omsultatim with the Service.nis then the applicant and Federal agency proposed species is subsequently listed request shan be in writing and conta,n t must agree on the choice of the or the proposed critical habitat is the inimmatim atlined in 1402.14(c) designated non-Federal representative. designated prior to completion of the and,if the actim is a maja constructim if a biological assessment is prepared by action. the Federal agency must review activity, the biological assessment as the designated non-Federal the action to determine whether formaj atlined in i 402A2. representative, the Federal agency shall wasaltation is required. (d) Procedures cadresponsibilities. furnish guidance and supervision and (d) 1! requested by the Federal agency De Procedures and responsibilities for shall independently review and evaluate and deemed appropdate by the Service, early casultation are the same as the scope and contents of the biological the conference may be conducted in outlined in i 402.14(c}-{j) for formal assessment.ne ultimate responsibility acmrdance with the procedures for consultation, except that all references for compliance with section 7 remains formal consultation in i 402.14. An to the " applicant" shaU be treated as the with the Federal agency. opinion issued at the conclusion of the " pro *Pective applicant" and aD mnference may be adopted as the referenws to the " biological opinion" or Isom trremm or hetrievaW biological opinion when the species is the " opinion" shall be treated as the camnnment of resarces-listed or critical habitat is designated. ."prelimtwy biological opinion" for the After initiation or reinitiation of but only if no significant new N purpose of this section. s consultation required under section information is developed (including that (e) Prelinunary biolog/colopinion. 7(a)(2) of the Act, the Federal agency developed during the rulemaking ne contents and conclusions of a and any applicant shau make no process on the proposed listing or preliminary biological opInlon are the irreversible or irretrievable commitment critical habitat designation) and no same as for a biological opinion issued of resourtes with respect to the agency significant changes to the Federal action after formal mesultation except that the action which has the effect of are made thatwould alter the content of incidental take statement provided with foreclosing the formulation or the opinion. An incidental take a preliminary biological opinion does implementation of any reasonable and statement provided with a conference not constitute authority to take listed prudent alternatives which would avoid opinion does not become effective species. violating section 7(a)(2). His prohibition unless the Service adopts the opinion (f) Confirmation ofpreliminary is m force during the consultation once the listing is final. biologica/ opinion as final biologim/ process and continues until the (e)Re conclusions reached during a opinion. A preliminary biological requirements of section 7(a)(2) are conference and any recommendations opinion may be confmned as a I
l ~ ~ Federal Register / Vol. 51. No.1C3 / Tuesday. June 3.1986 /1.ules and Regulations 19961 submit the completed bioloF cal critical habitat. lf such a determination provide the Service with the best i essessment to the Director for review. is made, formal consultation is required, scientific and commerdal data available ne Director will respond in writing except as noted in paragraph (b) of this ct which can be obtained during the within 30 days as to whether or not he section.ne Director may request a consultation for an adequate review of concurs with the findings of the Federal agency to enter into the effects that an action may have upon I bk o cal assessment. At the option of consultation if he identifies any action listed species or critical habitat.This i t: 3ral agency. formal consultation of that agency that may affect listed information may include the results of msy oc initiated under $ 40214(c) species or critical habitat and for which studies or surveys conducted by the concurrently with the submission of the there has been no consultation. When Federal agency or the designated non-essessment. such a request is made the Director Federal representative.De Federal (k) Use of the biol0E colossessment shall forward to the Federal agency a agency shall provide any applicant with i (t)ne Federal agency shall use the written explanation of the basis for the the opportunity to submit information biological assessment in determining request. for considerstion during the whether formal consultation or a (b) &ceptions. (1) A Federal agency consultation. i l conference is required under 1402.14 or need not initiate formal c6nsultation if. (e) Durotion andextension offormal 14c2.10, respectively. lf the biological as a result of the preparation of a consultorian. Formal consultation l assessment indicates that there are no biological assessment under $ 402.12 or concludes within 90 days after its i i listed species or critical habitat present as a result ofinformal consultation with initiation unless extended as provided that ere likely to be adversely affected the Sewice under 14c2.13. the Federal below. If an applicant is not involved. i by the action and the Director concurs agency determines, with the written the Service and the Federal agency may i I es specified in paragraph (j) of this concurrence of the Director, that the mutually agree to extend the l section then formal consultation i+ not proposed action is not likely to consultation for a specific time period. If required.If the biological assessment adversely affect any listed species or an applicant is involved the Service and indicates that the action is not likely to critical habitat-the Federal agency may mutually agree jeopardir.e the coatinued existence of (2) A Federal agency need not initiate to extend the consultation provided that proposed species or result in the formal consultation if a preliminary the Service. submits to the applicant, destruction or adverse modification of biological opinion, issued after early before the close of the 90 days, a written proposed critical habitat. and the consultation under $ 402.11. is confirmed statement setting forth: 1 Directc,r concurs, then a conference is as the final biological opinion. (1)ne reasons why a longer period is not required. (c)laitiationoffonnalconsultclion. A "9gg,,x (2)ne Director may use the results of written request to initiate formal
- 12) ne infonnahn that is mquimd to the biological assessment in (i) consultation shall be submitted to the complete the consultation, and detendining whether to request the Director and shallinclude:-
Federal agency to initiate formal (1) A descriptioacf the action to be (3)%e estimated date on which the consultation wm be completed consultation or a conference. (til considered; formulating a biological opinion, or (iii) . (2) A description of the specific area A consultation involving an applicant formulating a preliminary biological - opwon. that may be affected by the action; cannot be extended for more than eo (3) A description of any listed species days without the consent of the or critical habitat that may be affected applicant. W; thin 45 days after, i 402.13 Informal consuftstlorL by the action: concluding formal consultation, tae (a) Informal consultation is an (4) A description of the manner in Service shall deliver a biological opinion i $sc$s on which the action may affect any listed to the Federal agency and any~ applicant. co nd n e species or critical habitat and an (f) Additionaldata.When the Service I between the Service and the Federal analysis f any cumulative effects: detennines that additional data would agency or the designated non-Federal (5) Relevant reporta, including any provide a better information base from representative, designed to assist the eniromnentalimpact statement. which to formulate a biological opinion, Federal agency in determining whether envir nmental assessment, or biological the Director may request an extension of formal consultation or's conference is assessment pnpared; and formal consultation and request that the nquired. If during informal consultation (6) Any other relevant available Federal agency obtain additional data to l it is determined by the Federal agency. inf nnahn n the action, the affected determine how or to what extent the with the written concurrence of the listed species, or critical habitat. ection may affect listed species or Service. that the action is not likely to Formal consultation shall not be critical habitat. lf formal consultation,s i adversely affect listed species or critical habitat, the consultation process is initiated by the Federal agency until any extended by mutual agreement terminated, and no further action is required biological assessment has been according to i 402.14(e), the Federal l
- ompleted and submitted to the Director agency shall obtain, to the extent necessary.
(b) During informal consultation, the in accordance with I402.12. Any request practicable, that data which can be Service may suggest modtfications to the for formal consultation may encompass, developed w' thin the scope of the action that the Federal agency and any subject to the approval of the Director, a extension.De responsibility for applicant could implement to avoid the. number of similar individual actions conducting and funding any studies hkelihood of adverse effects to listed within a given geographical area or a , belongs to the Federal agency and the species or entical habitat. aegment of a comprehensive plan.%is applicant, not the Service.%e Service's does not relieve the Federal agency of request for additional data is not to be I ao2.14 Formal consstatlorL the requirements for considering the construed as the Service's opinion that (a) Requirement forfonnel effects of the action as a whole. the Federal agency has failed to satisfy consultation. Each Federal egency shall (d) Responsibility toprovide best the information standard of section review its actions at the earliest scientific andcommercialdato 7(a)(2) of the Act.lf no extension of possible time to determine whether any available. He Federal agency formal consultation is agreed to, the action may affect listed species or requesting formal consultation shall Director will issue a biological opinion l O
r.. Federal Register / Vol. 51. No.106 / Tuesdsy. June 3.1966 / Rules and Reguistions 19963 3402.t5 pesponsamties of Federal agencirs and cthtts cre found in 50 CFR causes an effect ta the listed spects er agency fosowing lemnce of a 6 Part 451. critical habitat that was not considered oW In the biological opiniore or l p. (s) Followm, g the issuance of a (d] If a new species is listed or cdtical i bislogical opinion. the Federal agency Reinitiation of formal consultation is habitat designated that may be affected shsil determine whether and in what required and shall be requested by the by the identified action. ligh o7its se on 7 b g tion and the discretionary Federal involvement or william F. Horn. Federal agency or by the Service, where Dated: December 12.19s5. Service's biological opinion.
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I - (b)1f a jeopardy biological opinion is ta is autho by w and [ issued. the Federal agency shall notify (a)If the amount or extent of taking th2 Service of its final decision on the specified in the incidental take Dated. January so.isse. t cction. statement is exceeded; Wd!!am G. Gonloa. (c)1f the Federal agency determines (b) 1f new information reveals effects Assissant Adadaistmforfor risheries, that it cannot comply with the of the action that may affect listed Norionoicaeanic cadArmospheric
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I requirements of section 7(s)(2) after species or critical habitat in a manner or Administmfiort consultation with the Service,it may to an exteni not previously considered:. [FR Doc, a6-10506 Filed 6-46. 8.45 am) apply for an exem'ption. Procedures for (c)1f the identified action is exemption applications by Federal subsequently modified m a manner that f ~h 't 1 1 o s l l .h e N $18 f Y 9 # b a -l ? + } \\ ~ r 6 '}}