ML23292A248
| ML23292A248 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 10/19/2023 |
| From: | US Dept of Interior, Fish & Wildlife Service |
| To: | Arlene B Office of Nuclear Material Safety and Safeguards |
| References | |
| 2024-0006782 | |
| Download: ML23292A248 (1) | |
Text
United States Department of the Interior FISH AND WILDLIFE SERVICE Ohio Ecological Services Field Office 4625 Morse Road, Suite 104 Columbus, OH 43230-8355 Phone: (614) 416-8993 Fax: (614) 416-8994 In Reply Refer To: October 19, 2023 Project code: 2024-0006782 Project Name: Perry Nuclear Power Plant, Unit 1, License Renewal Federal Nexus: yes Federal Action Agency (if applicable): Nuclear Regulatory Commission
Subject:
Federal agency coordination under the Endangered Species Act, Section 7 for 'Perry Nuclear Power Plant, Unit 1, License Renewal'
Dear Briana Arlene:
This letter records your determination using the Information for Planning and Consultation (IPaC) system provided to the U.S. Fish and Wildlife Service (Service) on October 19, 2023, for
'Perry Nuclear Power Plant, Unit 1, License Renewal' (here forward, Project). This project has been assigned Project Code 2024-0006782 and all future correspondence should clearly reference this number. Please carefully review this letter. Your Endangered Species Act (Act) requirements may not be complete.
Ensuring Accurate Determinations When Using IPaC The Service developed the IPaC system and associated species determination keys in accordance with the Endangered Species Act of 1973 (ESA; 87 Stat. 884, as amended; 16 U.S.C. 1531 et seq.) and based on a standing analysis. All information submitted by the Project proponent into IPaC must accurately represent the full scope and details of the Project.
Failure to accurately represent or implement the Project as detailed in IPaC or the Northern Long-eared Bat Rangewide Determination Key (DKey), invalidates this letter. Answers to certain questions in the DKey commit the project proponent to implementation of conservation measures that must be followed for the ESA determination to remain valid.
Determination for the Northern Long-Eared Bat Based upon your IPaC submission and a standing analysis completed by the Service, your project has reached the determination of May Affect, Not Likely to Adversely Affect the northern long-eared bat. Unless the Service advises you within 15 days of the date of this letter that your
10/19/2023 2 IPaC-assisted determination was incorrect, this letter verifies that consultation on the Action is complete and no further action is necessary unless either of the following occurs:
new information reveals effects of the action that may affect the northern long-eared bat in a manner or to an extent not previously considered; or, the identified action is subsequently modified in a manner that causes an effect to the northern long-eared bat that was not considered when completing the determination key.
15-Day Review Period As indicated above, the Service will notify you within 15 calendar days if we determine that this proposed Action does not meet the criteria for a may affect, not likely to adversely affect (NLAA) determination for the northern long-eared bat. If we do not notify you within that timeframe, you may proceed with the Action under the terms of the NLAA concurrence provided here. This verification period allows the identified Ecological Services Field Office to apply local knowledge to evaluation of the Action, as we may identify a small subset of actions having impacts that we did not anticipate when developing the key. In such cases, the identified Ecological Services Field Office may request additional information to verify the effects determination reached through the Northern Long-eared Bat DKey.
You have indicated that you must remove a hazard tree in order to prevent imminent loss of human life. Be advised that the Acts implementing regulations (50 CFR part 17) include a take exemption pursuant to the defense of human life (for endangered species, see 50 CFR 17.21(c)
(2)): any person may take endangered [or threatened] wildlife in defense of his own life or the lives of others.). The regulations at 50 CFR 17.21(c)(4) require that any person taking, including killing, listed wildlife in defense of human life under this exception must notify our headquarters Office of Law Enforcement, at the address provided at 50 CFR 2.1(b), in writing, within 5 days. In addition, section 11 of the Act enumerates the penalties and enforcement of the Act. In regard to civil penalties, section 11(a)(3) of the Act states, Notwithstanding any other provision of this [Act], no civil penalty shall be imposed if it can be shown by a preponderance of the evidence that the defendant committed an act based on a good faith belief that he was acting to protect himself or herself, a member of his or her family, or any other individual from bodily harm, from any endangered or threatened species (16 U.S.C. 1540(a)(3)). Section 11(b)
(3) of the Act contains similar language in regard to criminal violations (see 16 U.S.C. 1540(b)
(3)). If you think incidental take of listed bats was reasonably certain to have occurred as a result of your hazard tree removal, we advise you to contact the Office of Law Enforcement as outlined above. In the future, we recommend planning ahead so that tree removal of potentially hazardous trees does not become an emergency. If you determine an emergency exists, however, and human life is in imminent danger, do not delay action. Also do not delay action if removal of the hazard tree is part of a federal response to a situation involving an act of God, disaster, casualty, national defense or security emergency, etc. - coordinate with the local USFWS field office as soon as practicable after the emergency is under control.
10/19/2023 3 Other Species and Critical Habitat that May be Present in the Action Area The IPaC-assisted determination for the northern long-eared bat does not apply to the following ESA-protected species and/or critical habitat that also may occur in your Action area:
Indiana Bat Myotis sodalis Endangered Monarch Butterfly Danaus plexippus Candidate Piping Plover Charadrius melodus Endangered Red Knot Calidris canutus rufa Threatened Tricolored Bat Perimyotis subflavus Proposed Endangered You may coordinate with our Office to determine whether the Action may affect the species and/
or critical habitat listed above. Note that reinitiation of consultation would be necessary if a new species is listed or critical habitat designated that may be affected by the identified action before it is complete.
If you have any questions regarding this letter or need further assistance, please contact the Ohio Ecological Services Field Office and reference Project Code 2024-0006782 associated with this Project.
10/19/2023 4 Action Description You provided to IPaC the following name and description for the subject Action.
- 1. Name Perry Nuclear Power Plant, Unit 1, License Renewal
- 2. Description The following description was provided for the project 'Perry Nuclear Power Plant, Unit 1, License Renewal':
In May 2023, Energy Harbor Nuclear Generation LLC (Energy Harbor) submitted an application to the U.S. Nuclear Regulatory Commission (NRC) requesting the NRC's renewal of the operating license no. NPF-58 for Perry Nuclear Power Plant, Unit 1. This nuclear power plant lies on the shore of Lake Erie in Lake County in North Perry Village and Perry Township, Ohio, about thirty-five miles northeast of Cleveland, Ohio. If approved, the renewed license would authorize Energy Harbor to continue operating Perry for an additional 20 years through November 7, 2046. Operating conditions would not change under license renewal, and Energy Harbor proposes no new construction, tree removal, or ground-disturbing activities as part of the license renewal.
The approximate location of the project can be viewed in Google Maps: https://
www.google.com/maps/@41.80241455,-81.14367669369054,14z
10/19/2023 5 DETERMINATION KEY RESULT Based on the answers provided, the proposed Action is consistent with a determination of may affect, but not likely to adversely affect for the Endangered northern long-eared bat (Myotis septentrionalis).
QUALIFICATION INTERVIEW
- 1. Does the proposed project include, or is it reasonably certain to cause, intentional take of the northern long-eared bat or any other listed species?
Note: Intentional take is defined as take that is the intended result of a project. Intentional take could refer to research, direct species management, surveys, and/or studies that include intentional handling/encountering, harassment, collection, or capturing of any individual of a federally listed threatened, endangered or proposed species?
No
- 2. The action area does not overlap with an area for which U.S. Fish and Wildlife Service currently has data to support the presumption that the northern long-eared bat is present.
Are you aware of other data that indicates that northern long-eared bats (NLEB) are likely to be present in the action area?
Bat occurrence data may include identification of NLEBs in hibernacula, capture of NLEBs, tracking of NLEBs to roost trees, or confirmed NLEB acoustic detections. Data on captures, roost tree use, and acoustic detections should post-date the year when white-nose syndrome was detected in the relevant state. With this question, we are looking for data that, for some reason, may have not yet been made available to U.S. Fish and Wildlife Service.
No
- 3. Does any component of the action involve construction or operation of wind turbines?
Note: For federal actions, answer yes if the construction or operation of wind power facilities is either (1) part of the federal action or (2) would not occur but for a federal agency action (federal permit, funding, etc.).
No
- 4. Is the proposed action authorized, permitted, licensed, funded, or being carried out by a Federal agency in whole or in part?
Yes
- 5. Is the Federal Highway Administration (FHWA), Federal Railroad Administration (FRA),
or Federal Transit Administration (FTA) funding or authorizing the proposed action, in whole or in part?
No
10/19/2023 6
- 6. Are you an employee of the federal action agency or have you been officially designated in writing by the agency as its designated non-federal representative for the purposes of Endangered Species Act Section 7 informal consultation per 50 CFR § 402.08?
Note: This key may be used for federal actions and for non-federal actions to facilitate section 7 consultation and to help determine whether an incidental take permit may be needed, respectively. This question is for information purposes only.
Yes
- 7. Is the lead federal action agency the Environmental Protection Agency (EPA) or Federal Communications Commission (FCC)? Is the Environmental Protection Agency (EPA) or Federal Communications Commission (FCC) funding or authorizing the proposed action, in whole or in part?
No
- 8. Is the lead federal action agency the Federal Energy Regulatory Commission (FERC)?
No
- 9. Have you determined that your proposed action will have no effect on the northern long-eared bat? Remember to consider the effects of any activities that would not occur but for the proposed action.
If you think that the northern long-eared bat may be affected by your project or if you would like assistance in deciding, answer No below and continue through the key. If you have determined that the northern long-eared bat does not occur in your projects action area and/or that your project will have no effects whatsoever on the species despite the potential for it to occur in the action area, you may make a no effect determination for the northern long-eared bat.
Note: Federal agencies (or their designated non-federal representatives) must consult with USFWS on federal agency actions that may affect listed species [50 CFR 402.14(a)]. Consultation is not required for actions that will not affect listed species or critical habitat. Therefore, this determination key will not provide a consistency or verification letter for actions that will not affect listed species. If you believe that the northern long-eared bat may be affected by your project or if you would like assistance in deciding, please answer No and continue through the key. Remember that this key addresses only effects to the northern long-eared bat. Consultation with USFWS would be required if your action may affect another listed species or critical habitat. The definition of Effects of the Action can be found here: https://www.fws.gov/media/northern-long-eared-bat-assisted-determination-key-selected-definitions No
10/19/2023 7
- 10. Have you contacted the appropriate agency to determine if your action is near any known northern long-eared bat hibernacula?
Note: A document with links to Natural Heritage Inventory databases and other state-specific sources of information on the locations of northern long-eared bat hibernacula is available here. Location information for northern long-eared bat hibernacula is generally kept in state natural heritage inventory databases - the availability of this data varies by state. Many states provide online access to their data, either directly by providing maps or by providing the opportunity to make a data request. In some cases, to protect those resources, access to the information may be limited.
Yes
- 11. Is any portion of the action area within 0.5-mile radius of any known northern long-eared bat hibernacula? If unsure, contact your local Ecological Services Field Office.
No
- 12. Does the action area contain any caves (or associated sinkholes, fissures, or other karst features), mines, rocky outcroppings, or tunnels that could provide habitat for hibernating northern long-eared bats?
No
- 13. Does the action area contain or occur within 0.5 miles of (1) talus or (2) anthropogenic or naturally formed rock crevices in rocky outcrops, rock faces or cliffs?
No
- 14. Is suitable summer habitat for the northern long-eared bat present within 1000 feet of project activities?
(If unsure, answer "Yes.")
Note: If there are trees within the action area that are of a sufficient size to be potential roosts for bats (i.e., live trees and/or snags 3 inches (12.7 centimeter) dbh), answer "Yes". If unsure, additional information defining suitable summer habitat for the northern long-eared bat can be found at: https://www.fws.gov/media/northern-long-eared-bat-assisted-determination-key-selected-definitions Yes
- 15. Will the action cause effects to a bridge?
No
- 16. Will the action result in effects to a culvert or tunnel?
No
10/19/2023 8
- 17. Does the action include the intentional exclusion of northern long-eared bats from a building or structure?
Note: Exclusion is conducted to deny bats entry or reentry into a building. To be effective and to avoid harming bats, it should be done according to established standards. If your action includes bat exclusion and you are unsure whether northern long-eared bats are present, answer Yes. Answer No if there are no signs of bat use in the building/structure. If unsure, contact your local U.S. Fish and Wildlife Services Ecological Services Field Office to help assess whether northern long-eared bats may be present. Contact a Nuisance Wildlife Control Operator (NWCO) for help in how to exclude bats from a structure safely without causing harm to the bats (to find a NWCO certified in bat standards, search the Internet using the search term National Wildlife Control Operators Association bats). Also see the White-Nose Syndrome Response Team's guide for bat control in structures No
- 18. Does the action involve removal, modification, or maintenance of a human-made structure (barn, house, or other building) known or suspected to contain roosting bats?
No
- 19. Will the action cause construction of one or more new roads open to the public?
For federal actions, answer yes when the construction or operation of these facilities is either (1) part of the federal action or (2) would not occur but for an action taken by a federal agency (federal permit, funding, etc.).
No
- 20. Will the action include or cause any construction or other activity that is reasonably certain to increase average daily traffic on one or more existing roads?
Note: For federal actions, answer yes when the construction or operation of these facilities is either (1) part of the federal action or (2) would not occur but for an action taken by a federal agency (federal permit, funding, etc.). .
No
- 21. Will the action include or cause any construction or other activity that is reasonably certain to increase the number of travel lanes on an existing thoroughfare?
For federal actions, answer yes when the construction or operation of these facilities is either (1) part of the federal action or (2) would not occur but for an action taken by a federal agency (federal permit, funding, etc.).
No
- 22. Will the proposed action involve the creation of a new water-borne contaminant source (e.g., leachate pond pits containing chemicals that are not NSF/ANSI 60 compliant)?
No
- 23. Will the proposed action involve the creation of a new point source discharge from a facility other than a water treatment plant or storm water system?
No
10/19/2023 9
- 24. Will the proposed action involve blasting?
No
- 25. Will the action involve military training (e.g., smoke operations, obscurant operations, exploding munitions, artillery fire, range use, helicopter or fixed wing aircraft use)?
No
- 26. Will the proposed action involve the use of herbicides or pesticides other than herbicides (e.g., fungicides, insecticides, or rodenticides)?
No
- 27. Will the action include or cause activities that are reasonably certain to cause chronic nighttime noise in suitable summer habitat for the northern long-eared bat? Chronic noise is noise that is continuous or occurs repeatedly again and again for a long time.
Note: Additional information defining suitable summer habitat for the northern long-eared bat can be found at:
https://www.fws.gov/media/northern-long-eared-bat-assisted-determination-key-selected-definitions No
- 28. Does the action include, or is it reasonably certain to cause, the use of artificial lighting within 1000 feet of suitable northern long-eared bat roosting habitat?
Note: Additional information defining suitable roosting habitat for the northern long-eared bat can be found at:
https://www.fws.gov/media/northern-long-eared-bat-assisted-determination-key-selected-definitions No
- 29. Will the action include tree cutting or other means of knocking down or bringing down trees, tree topping, or tree trimming?
Yes
- 30. Have you contacted the appropriate agency to determine if the action area overlaps with a known northern long-eared bat conservation buffer / known summer habitat (3-mile buffers around northern long-eared bat captures or detections; 1.5 mile buffer around known roosts)) or spring staging/fall swarming buffer (within 5 miles of known hibernacula)?
Note: A web page with links to state Natural Heritage Inventory databases and other sources of information on the locations of northern long-eared bat roost trees can be found here. Location information for northern long-eared bat maternity roost trees and swarming areas is generally kept in state natural heritage inventory databases
- the availability of this data varies state-by-state. Many states provide online access to their data, either directly by providing maps or by providing the opportunity to make a data request. In some cases, to protect those resources, access to the information may be limited. If youd like to assume presence of northern long-eared bats, answer No.
Yes
- 31. Does the action area overlap with a known spring staging/fall swarming buffer (within 5 miles of known hibernacula)?
No
10/19/2023 10
- 32. Does the action area overlap with a known northern long-eared bat conservation buffer (3-mile buffer around northern long-eared bat captures or detections; 1.5-mile buffer around known roost trees)?
Answer yes to this question if you also answered 'yes' above to the question "Do you have post-white nose syndrome occurrence data that indicates that northern long-eared bats (NLEB) are likely to be present in the action area?"
No
- 33. Has a presence/probable absence summer bat survey targeting the northern long-eared bat following the Services Range-wide Indiana Bat and Northern Long-Eared Bat Survey Guidelines been conducted within the project area? If unsure, answer No.
No
- 34. Does the action include emergency cutting or trimming of hazard trees in order to remove an imminent threat to human safety or property? See hazard tree note at the bottom of the key for text that will be added to response letters Note: A "hazard tree" is a tree that is an immediate threat to lives, public health and safety, or improved property and has a diameter breast height of six inches or greater.
Yes
- 35. Are any of the trees proposed for cutting or other means of knocking down, bringing down, topping, or trimming suitable for northern long-eared bat roosting (i.e., live trees and/or snags 3 inches dbh that have exfoliating bark, cracks, crevices, and/or cavities)?
No
- 36. Will the action result in the use of prescribed fire?
No
- 37. Will the action cause noises that are louder than ambient baseline noises within the action area?
No
10/19/2023 11 PROJECT QUESTIONNAIRE Enter the extent of the action area (in acres) from which trees will be removed - round up to the nearest tenth of an acre. For this question, include the entire area where tree removal will take place, even if some live or dead trees will be left standing.
1 In what extent of the area (in acres) will trees be cut, knocked down, or trimmed during the inactive (hibernation) season for northern long-eared bat? Note: Inactive Season dates for spring staging/fall swarming areas can be found here: https://www.fws.gov/media/inactive-season-dates-swarming-and-staging-areas 1
In what extent of the area (in acres) will trees be cut, knocked down, or trimmed during the active (non-hibernation) season for northern long-eared bat? Note: Inactive Season dates for spring staging/fall swarming areas can be found here: https://www.fws.gov/media/inactive-season-dates-swarming-and-staging-areas 0
Will all potential northern long-eared bat (NLEB) roost trees (trees 3 inches diameter at breast height, dbh) be cut, knocked, or brought down from any portion of the action area greater than or equal to 0.1 acre? If all NLEB roost trees will be removed from multiple areas, select Yes if the cumulative extent of those areas meets or exceeds 0.1 acre.
Yes Enter the extent of the action area (in acres) from which all potential NLEB roost trees will be removed. If all NLEB roost trees will be removed from multiple areas, entire the total extent of those areas. Round up to the nearest tenth of an acre.
1 For the area from which all potential northern long-eared bat (NLEB) roost trees will be removed, on how many acres (round to the nearest tenth of an acre) will trees be allowed to regrow? Enter 0 if the entire area from which all potential NLEB roost trees are removed will be developed or otherwise converted to non-forest for the foreseeable future.
1 Will any snags (standing dead trees) 3 inches dbh be left standing in the area(s) in which all northern long-eared bat roost trees will be cut, knocked down, or otherwise brought down?
Yes Will all project activities by completed by April 1, 2024?
No
10/19/2023 12 IPAC USER CONTACT INFORMATION Agency: Nuclear Regulatory Commission Name: Briana Arlene Address: 11555 Rockville Pike City: Rockville State: MD Zip: 20852 Email briana.arlene@nrc.gov Phone: 3014151042