Endangered Species; File No. 21516, 36563-36565 [2020-13041]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 85, Number 117 (Wednesday, June 17, 2020)]
[Notices]
[Pages 36563-36565]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13041]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XA183]


Endangered Species; File No. 21516

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of availability; request for public comments.

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SUMMARY: NMFS has received a revised application from Virginia Electric 
and Power Company, D.B.A. Dominion Virginia Power for an incidental 
take permit, pursuant to the Endangered Species Act for activities 
associated with the otherwise lawful continued operation and 
maintenance of the Dominion Chesterfield Power Station in Chesterfield, 
VA. We are publishing this notice to inform the public that we are 
considering issuing a 5-year permit to the applicant that would 
authorize take of Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus) 
from the Chesapeake Bay.

DATES: To allow for timely processing of the permit application, we 
must receive your comments no later than July 17, 2020.

ADDRESSES: The application is available for download and review at 
https://www.nmfs.noaa.gov/pr/permits/esa_review.htm under the section 
heading ESA Section 10(a)(1)(B) Permits and Applications and at https://www.regulations.gov. The application is also available upon request by 
emailing [email protected].
    Submit your comments by including NOAA-NMFS-2017-0051-0001, by 
either of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking Portal.
    1. Go to www.regulations.gov/document?D=NOAA-NMFS-2017-0051-0001.
    2. Click the ``Comment Now!'' icon, complete the required fields.
    3. Enter or attach your comments.
     Email: Submit information to 
[email protected].
    Instructions: We may not consider comments if they are sent by any 
other method, to any other address or individual, or received after the 
end of the specified period. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.) confidential business 
information, or otherwise sensitive or protected information submitted 
voluntarily by the sender is publicly accessible. We will accept 
anonymous comments (enter ``N/A'' in the required fields if you wish to 
remain anonymous).

FOR FURTHER INFORMATION CONTACT: Julie Crocker, (978) 282-8480.

SUPPLEMENTARY INFORMATION: We, NMFS, published notice in the Federal 
Register on August 14, 2017 (82 FR 37849), of an application from 
Virginia Electric and Power Company, D.B.A. Dominion Virginia Power 
(Dominion) for an incidental take permit (ITP) to take federally listed 
Atlantic sturgeon belonging to the Chesapeake Bay Distinct Population 
Segment (Chesapeake Bay DPS) over a 10-year period as a result of 
impingement and entrainment in the Chesterfield Power Station (CPS) 
cooling water intake

[[Page 36564]]

system and collection during sampling required by section 316(b) of the 
Clean Water Act (CWA). Dominion provided a draft Habitat Conservation 
Plan (HCP) that described the conservation program they would implement 
to minimize and mitigate the impacts of the incidental take. We 
received 37 comments during the public comment period. In addition, new 
information became available regarding dispersal of Atlantic sturgeon 
offspring in the James River, the risk of impingement for adult 
Atlantic sturgeon at CPS, and operation of the generating units at CPS. 
Dominion has revised and resubmitted their application and draft HCP to 
us in response to the public comments received and this new 
information.
    To comply with the National Environmental Policy Act (NEPA) (42 
U.S.C. 4321 et seq.), we prepared an Environmental Assessment (EA) that 
describes our proposed action and possible alternatives and analyzes 
the effects of the proposed action and alternatives on the human 
environment. We will evaluate whether the EA's analysis is adequate to 
support a Finding of No Significant Impact.

Background

    Section 9 of the Endangered Species Act (ESA) and Federal 
regulations prohibit the ``take'' of Atlantic sturgeon belonging to the 
Chesapeake Bay DPS. The ESA defines ``take'' to mean harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to 
attempt to engage in any such conduct. However, under section 
10(a)(1)(B) of the ESA, we may issue permits to authorize incidental 
take. ``Incidental take'' is defined by the ESA as take that is 
incidental to, and not the purpose of, carrying out an otherwise lawful 
activity. Section 10(a)(2)(A) of the ESA requires an ITP applicant to 
submit an HCP that specifies the steps the applicant will take to 
minimize and mitigate the impacts of the taking. Regulations governing 
ITPs for threatened and endangered species are found at 50 CFR 222.307.
    The CPS is a coal-fueled power station in Chesterfield, Virginia in 
the upper tidal portion of the James River. It operates pursuant to a 
permit issued by the Virginia Department of Environmental Quality under 
section 402 of the CWA (the National Pollutant Discharge Elimination 
System program). CPS is subject to the CWA section 316(b) existing 
facility rule (79 FR 48300, August 15, 2014).
    The revisions to Dominion's ITP application are: A permit for a 
term of 5-years instead of 10-years; new estimates for take of Atlantic 
sturgeon larvae by entrainment; and, removing anticipated take by 
impingement. Based on Dominion's revised approach for estimating take, 
Dominion anticipates an average annual take of 10,949 (range 1,820-
33,789) Atlantic sturgeon larvae from the Chesapeake Bay DPS due to 
entrainment in the Dominion CPS cooling water intakes. Dominion 
anticipates the take of no more than one Atlantic sturgeon larvae in 
water samples needed to complete their required CWA 316(b) studies.
    Dominion no longer anticipates take by impingement. Modifications 
and repairs were made to the intake guards following impingement of 
four adult Atlantic sturgeon in October 2018. Dominion subsequently 
determined that through-rack water velocities for the intake guards, 
trash racks, and traveling screens were less than 2 feet per second 
(fps) and concluded that healthy adult Atlantic sturgeon are capable of 
maneuvering against the intake velocity. Juvenile and subadult Atlantic 
sturgeon are not expected to occur in the vicinity of CPS given their 
life history attributes. Therefore, Dominion does not anticipate that 
take by impingement will occur and is not requesting such take in their 
ITP application.
    Dominion does not anticipate and is not requesting take of Atlantic 
sturgeon at CPS as a result of dredging, constituent discharge, thermal 
discharge, vessel movements, and shoreline and structure maintenance 
associated with operation of CPS. Dominion included consideration of 
the potential effects of CPS operation to shortnose sturgeon (Acipenser 
brevirostrum) in the ITP application but are not requesting take of 
shortnose sturgeon.

Conservation Plan

    Section 10(a)(1)(B) of the ESA specifies that no permit may be 
issued unless an applicant submits an adequate HCP. Dominion has 
revised its proposed HCP which describes measures designed to minimize, 
monitor, and mitigate the incidental take of Atlantic sturgeon. 
Following the impingement of four adult Atlantic sturgeon in September 
2018, Dominion completed a survey of the intake guards, repaired those 
that were degraded, and replaced a missing guard. Grid openings of the 
guards were reduced to prevent the smallest adult Atlantic sturgeon in 
the James River from entering the intake structure. In addition, the 
intake opening for each of two of the intake units was expanded to 
reduce water velocity. Based on these changes, Dominion anticipates the 
risk of impingement for adult Atlantic sturgeon has been minimized to 
the extent that take is not likely to occur. Dominion will monitor for 
impingement at the trash racks and at the traveling screens to confirm 
that take is not occurring.
    Dominion proposes to partner with Virginia Commonwealth University 
(VCU) which will provide Dominion access to VCU's tracking data for 
acoustically-tagged sturgeon that move upriver of CPS to spawn. In 
addition, Dominion will contract with VCU to deploy and maintain 
additional, new, receivers downstream of CPS to better inform when 
spawning Atlantic sturgeon are in the vicinity of CPS. The information 
acquired is expected to help inform when sturgeon larvae may be present 
in the vicinity of CPS. The information can be used by Dominion for 
timing its remaining sampling to complete the required CWA 316(b) 
studies. Knowing when spawning adults move past CPS or how long they 
are present in the vicinity of CPS will provide information necessary 
to better assess the risk of CPS operations (e.g., intake flows), and 
to develop site-specific management actions to minimize take (e.g., 
planning and implementing routine maintenance outages, when 
practicable, to coincide with peak spawning movements).
    Dominion is also proposing to implement a pilot study that tests a 
new approach for identifying and counting Atlantic sturgeon larvae at 
CPS. If effective, this approach would provide information to inform 
minimization measures for Atlantic sturgeon larvae.
    The proposed action is the issuance of an ITP and implementation of 
the proposed HCP. Dominion considered two alternatives to the proposed 
action in its HCP: (1) No change to existing operations, studies and 
maintenance at CPS; and, (2) avoiding and minimizing permitted 
activities (e.g., modifying water withdrawals; modifying the cooling 
water intake structure; not conducting or not continuing the planned 
CWA 316(b) studies; not dredging and/or dredging less frequently; not 
using barges or vessels for the shipment or delivery of bulk materials; 
not performing or reducing shoreline and structure maintenance 
activities at CPS).

National Environmental Policy Act

    In compliance with NEPA, we analyzed the impacts of the proposed 
issuance of an ITP and implementation of the HCP, and alternatives. 
Based on this analysis and any new information resulting from public 
comment, we will determine if there are any significant impacts caused 
by the proposed action. We previously prepared a draft EA and

[[Page 36565]]

have revised it based on the new information provided by Dominion in 
their revised ITP application and HCP. We have made the draft, revised, 
EA available for public inspection online (see ADDRESSES).
    This notice is provided pursuant to section 10(c) of the ESA and to 
the NEPA regulations (40 CFR 1506.6). We will evaluate the application, 
associated documents, and submitted comments received to determine 
whether the application meets the requirements of section 10 of the ESA 
(16 U.S.C. 1531 et seq.). We will also evaluate whether issuance of a 
section 10(a)(1)(B) permit would comply with section 7 of the ESA by 
conducting an intra-Service section 7 consultation. We will use the 
results of this consultation, in combination with the above findings, 
in our final analysis to determine whether to issue a permit. If the 
requirements are met, we will issue the permit to the applicant.
    We will publish a record of our final action in the Federal 
Register.

    Authority: This notice is provided pursuant to section 10(c) of 
the ESA (16 U.S.C. 1531 et seq.) and NEPA regulations (40 CFR 
1506.6).

    Dated: June 12, 2020.
Angela Somma,
Chief, Endangered Species Division, Office of Protected Resources, 
National Marine Fisheries Service.
[FR Doc. 2020-13041 Filed 6-16-20; 8:45 am]
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