Endangered Species; File No. 21516, 1945-1947 [2021-00303]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 86, Number 6 (Monday, January 11, 2021)]
[Notices]
[Pages 1945-1947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-00303]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XA785]


Endangered Species; File No. 21516

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

ACTION: Notice; Issuance of permit.

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SUMMARY: Notice is hereby given that NMFS has issued an Incidental Take 
Permit (ITP) (No. 21516) to Virginia Electric and Power Company, D.B.A. 
Dominion Virginia Power (Dominion) pursuant to the Endangered Species 
Act (ESA) of 1973, as amended, for the incidental take of Atlantic 
sturgeon (Acipenser oxyrinchus oxyrinchus) associated with the 
otherwise lawful operation of the Dominion Chesterfield Power Station 
(CPS) in Chesterfield, VA. The permit is issued for a duration of 5 
years.

ADDRESSES: The incidental take permit, final Environmental Assessment 
(EA), and other related documents are available on the NMFS Office of 
Protected Resources website at https://www.fisheries.noaa.gov/action/incidental-take-permit-virginia-electric-and-power-company-dba-dominion-virginia-power.

FOR FURTHER INFORMATION CONTACT: Julie Crocker, (978) 282-8480 or 
email, [email protected].

SUPPLEMENTARY INFORMATION: Section 9 of the ESA and Federal regulations 
prohibits the ``taking'' of a species listed as endangered or 
threatened. 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. NMFS may issue permits, under limited 
circumstances to take listed species when the takes are incidental to, 
and not the purpose of, otherwise lawful activities. Section 
10(a)(1)(B) of the ESA provides for authorizing incidental take of 
listed species. The regulations for issuing incidental take permits for 
threatened and endangered species are promulgated at 50 CFR 222.307.

Background

    The power-generating units at CPS utilize a once-through cooling 
water system that withdraws water from the James River, Virginia, 
through cooling water intake structures (CWIS). The openings of all the 
intake pipes associated with the CWISs are constantly submerged and 
aligned flush with and parallel to the river's axis.
    In 2015, two Atlantic sturgeon larvae belonging to the Chesapeake 
Bay distinct population segment (DPS) of Atlantic sturgeon were found 
in entrainment samples collected at CPS. These were the first known 
takes of Atlantic sturgeon larvae at CPS despite previous entrainment 
sampling. Dominion anticipates that takes will occur in the future 
because it is required to conduct additional entrainment sampling to 
complete the Clean Water Act (CWA) 316(b) studies for the facility, and 
Dominion will continue to operate CPS for power generation, which 
requires withdrawing water through the CWIS. Dominion, therefore, 
applied for an ITP in accordance with the requirements under Section 
10(a)(1)(B) of the ESA.
    Dominion submitted a complete ITP application and habitat 
conservation plan (HCP) to us on April 10, 2017. We prepared a draft EA 
in accordance with the National Environmental Policy Act (NEPA), and 
published notice in the Federal Register announcing the availability of 
the EA, the ITP application and HCP for public comment (82 FR 37849; 
August 14, 2017). We received 37 comments during the public comment 
period. Most of the comments requested that we not issue the permit to 
Dominion based on the need to protect sturgeon or until Dominion had 
submitted a better plan for minimizing and mitigating the impacts of 
the taking. In addition to these, Dominion provided comments in support 
of its application while Southern Environmental Law Center (SELC), on 
behalf of the James Riverkeeper Association, provided a report from a 
sturgeon expert questioning several aspects of the ITP application, 
including the amount of take anticipated and Atlantic sturgeon spawning 
success in the James River.
    Dominion revised sections of their ITP application and HCP and 
submitted those to us on October 16, 2019, in response to the comments 
received as well as in response to new information regarding dispersal 
of Atlantic sturgeon in the James River, the risk of impingement for 
adult Atlantic sturgeon at CPS, and the operation of the generating 
units at CPS. All other parts of the ITP application and HCP that 
Dominion submitted to us on April 10, 2017, were incorporated by 
reference. We considered this application complete and published notice 
in the Federal Register of the revised application and HCP, and the 
availability of the draft revised EA for public comment (85 FR 36563; 
June 17, 2020). The comment period ended on July 17, 2020. We received 
comments

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only from Dominion and the SELC, on behalf of the James Riverkeeper 
Association. Dominion provided several clarifying comments for 
statements in the draft EA. NMFS has addressed these comments in the 
EA. The SELC submitted comments supporting aspects of the HPC but 
contend that the HPC measures do not minimize and mitigate the impacts 
of the taking to the maximum extent practicable. Further, they contend 
that NMFS failed to consider a full range of reasonable alternatives 
and therefore, the EA fails to satisfy the requirements of NEPA. We 
reviewed and considered the information provided by Dominion, the 
expert opinion submitted by SELC with its comments, and other available 
information (e.g., published literature). We concluded that, based on 
the best information available, Dominion has demonstrated that 
implementing the HPC measures will minimize and mitigate the effects of 
the taking to the maximum extent practicable. Based on SELC's comments, 
NMFS also reviewed its decision to reject a third alternative that, if 
selected as the preferred, would have meant issuing an ITP requiring 
Dominion to suspend cooling water intake at CPS from August through 
October each year, other than when Dominion was completing sampling for 
its CWA 316(b) studies. After considering the comments, we determined 
that SELC did not provide new information on this issue that would 
cause us to change our decision to reject this alternative. However, we 
did include more information in the final EA to explain why we rejected 
this alternative.

Habitat Conservation Plan

    Section 10 of the ESA specifies that no permit may be issued unless 
an applicant submits an adequate conservation plan. The HCP prepared by 
Dominion describes measures to monitor, minimize, and mitigate the 
impacts of incidental takes of
    Atlantic sturgeon belonging to the Chesapeake Bay DPS. Dominion's 
initial ITP application requested take of Atlantic sturgeon larvae that 
was expected to occur as a result of entrainment at CPS, and take of 
adult Atlantic sturgeon that was expected to occur as a result of 
impingement at CPS. Dominion's HCP, therefore, addresses minimization, 
mitigation, and monitoring of the take of Atlantic sturgeon as a result 
of entrainment and impingement at CPS.
    During the application process, following an Atlantic sturgeon 
impingement event, Dominion repaired and replaced all of the CWIS 
intake guards. 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 two of the intake 
units was expanded to reduce water velocity. Until recently, there was 
limited available information for swimming speed of Atlantic sturgeon 
(Hilton et al. 2016). Dominion, therefore, used swim speed of juvenile 
white and juvenile green sturgeon as a proxy and concluded that adult 
Atlantic sturgeon would not be overcome by the CPS intake velocities 
and would not be impinged. New information became available recently, 
and it demonstrates that the average swim speed for fall spawning 
Atlantic sturgeon migrating past CPS to and from the spawning grounds 
exceeds the CPS intake velocities (Balazik et al. 2020). Therefore, the 
best available information, which includes scientific data, supports 
that adult Atlantic sturgeon will not be impinged at CPS even when the 
fish are moving downriver after spawning. Based on this comparison, we 
agreed with Dominion's conclusion that impingement of adult Atlantic 
sturgeon is not reasonably likely to occur in the future. These changes 
to the intake guards are part of the minimization measures of the HCP.
    The HCP also includes measures to mitigate for the anticipated take 
by entrainment of Atlantic sturgeon larvae at CPS and to provide 
information that can better inform additional measures to minimize take 
of the larvae. 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 (e.g., sampling at times when larvae are not likely to 
be near CPS). 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. Since this is a pilot study, the goal is to determine whether the 
technique can reliably detect Atlantic sturgeon larvae and if the data 
are sufficient to determine abundance. It is unknown whether digital 
holography will prove successful for detecting Atlantic sturgeon larvae 
or other early life stages. However, there are currently no other 
successful methods for detecting these other than entrainment sampling. 
Therefore, the pilot study could provide new information, which would 
otherwise not be collected. If effective, this approach would provide 
information to inform minimization measures for Atlantic sturgeon 
larvae and will provide a new tool that has many beneficial 
applications for recovery of the Atlantic sturgeon DPS (e.g., abundance 
or distribution surveys of Atlantic sturgeon early life stages).
    The HPC must also address monitoring for take. Dominion's 
monitoring protocol is focused on entrainment of Atlantic sturgeon 
larvae and, therefore, differs from their protocol to complete the CWA 
316(b) studies. Dominion also revised their monitoring approach from 
the 2017 ITP application by increasing the frequency of sampling during 
the targeted months of September and October, when the fall spawning 
period for Atlantic sturgeon in the James River typically occurs, and 
for the full permit duration. Dominion is no longer proposing to 
monitor for entrainment of Atlantic sturgeon larvae in the spring since 
larvae from spring spawning would only occur downriver of CPS and, 
therefore, would not be susceptible to entrainment at CPS.
    Entrainment samples for monitoring take of Atlantic sturgeon will 
be sorted on site. Although free-floating Atlantic sturgeon eggs are 
generally considered non-viable, Dominion's entrainment monitoring 
methodology includes sorting for and retaining any suspected Atlantic 
sturgeon eggs. All Atlantic sturgeon eggs and larvae will be 
appropriately preserved. As explained by Dominion in their August 31, 
2018, letter to us, entrainment samples for monitoring will not be 
collected at all of the intake units because it is unsafe and 
impractical given discharge or the elevation of the intake units 
relative to the river.
    As described above, take of adult Atlantic sturgeon by impingement 
at the trash racks is not expected to occur because of the changes made 
to the

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intake guards that would prevent the sturgeon from accessing the area 
where the trash racks are located. The HCP does, however, include 
monitoring of the trash racks for sturgeon. Dominion will continue to 
inspect trash rack debris at the water surface, and debris removed from 
the trash racks, for sturgeon. Dominion has sturgeon handling 
procedures in the event a living or dead sturgeon is found among the 
debris floating in the water or in the debris removed from the trash 
racks. Monitoring will not, however, occur at the intake guards because 
it is not feasible due to the turbidity of the river and the safety 
risk for personnel.
    We conducted intra-agency section 7 consultation to ensure that 
issuing the permit would comply with the ESA. The Greater Atlantic 
Regional Fisheries Office (GARFO) Protected Resources Division issued a 
Biological Opinion on November 10, 2020, that considered the effects of 
the activities covered by this ITP as well as the effects to other ESA-
listed species from the other activities reasonably expected to occur 
at CPS during the 5 year duration of the permit. Those other activities 
include the discharge of heated effluent and other pollutants resulting 
from CPS operations, and the barge traffic that is associated with 
deliveries of materials to and from CPS.
    The Biological Opinion concluded that activities covered by this 
ITP (i.e., entrainment of larval Atlantic sturgeon during CPS 
operations and entrainment/collection during required sampling) may 
adversely affect but are not likely to jeopardize the continued 
existence of the Chesapeake Bay DPS of Atlantic sturgeon. We also 
concluded that this action is not likely to adversely affect designated 
critical habitat for the DPS, or shortnose sturgeon, the Gulf of Maine, 
New York Bight, Carolina, and South Atlantic DPSs of Atlantic sturgeon, 
North Atlantic DPS green turtle, Kemp's ridley turtle, leatherback 
turtle, and Northwest Atlantic Ocean DPS of loggerhead turtle.
    With respect to the other CPS activities and other ESA-listed 
species in the James River, the only activity that may affect other 
listed species is the shipment of materials to and from CPS by barge 
within the James River. In the Biological Opinion we concluded that the 
effects of those activities on shortnose sturgeon, the four other DPSs 
of Atlantic sturgeon, and leatherback, Kemp's ridley, green, and 
loggerhead sea turtles would be insignificant or extremely unlikely to 
occur and that, therefore, this action was not likely to adversely 
affect any of these species. Dominion has not indicated any plans to 
conduct dredging or shoreline maintenance during the 5 year duration of 
the ITP. Therefore, effects to ESA listed species and critical habitat 
in the action area from dredging and shoreline maintenance activities 
are not reasonably certain to occur and do not meet the definition of 
``effects of the action.'' As a result, these activities were not 
considered further in the consultation. If Dominion applied for any 
Federal permits or authorizations for any future dredging or shoreline 
maintenance, ESA section 7 consultation would be necessary for any of 
those activities that may affect listed species or critical habitat. 
The full section 7 evaluation can be found in the Biological Opinion.

Permit 21516

    NMFS authorizes the following lethal take for the Chesapeake Bay 
DPS of Atlantic sturgeon.
    Entrainment: up to 54,745 larvae, total, for the 5-year duration of 
the permit with an anticipated average annual take of 10,949 per year 
during normal operation of CPS, and 1 larvae over the 5-year duration 
of the permit during sampling to complete CWA section 316(b) sampling.
    Impingement: There is no authorized or anticipated incidental take 
by impingement based on the already implemented minimization measures.
    The first 3 years of monitoring data collected under the permit 
will be analyzed to verify the requested total annual incidental take. 
As data are gathered and analyzed through monitoring, NMFS may amend 
the permit to reflect any changes in the take estimate, if appropriate.
    The permit requires Dominion to prepare a report, due to NMFS 
within 90 days of issuance of the ITP, which details how observed take 
of Atlantic sturgeon will be extrapolated to generate an accurate and 
reliable estimate of total annual take at the facility. Dominion must 
also submit reports of any observed take of Atlantic sturgeon to NMFS 
within seven days, and must prepare an annual report detailing all 
observed takes of Atlantic sturgeon at CPS. NMFS review of the annual 
report provides an opportunity to monitor the ongoing amount of take at 
CPS and detect any trends that may indicate a potential exceedance of 
the anticipated take before such an event occurs.

National Environmental Policy Act

    Issuing an ESA section 10(a)(1)(B) permit constitutes a Federal 
action requiring NMFS to comply with NEPA (42 U.S.C. 4321 et seq.) as 
implemented by 40 CFR parts 1500-1508 and NOAA Administrative Order 
216-6A, Compliance with the NEPA (2016). NMFS prepared an EA to 
consider a range of reasonable alternatives and fully evaluate the 
direct, indirect, and cumulative impacts likely to result from the 
authorization of this permit. NMFS found that issuing the ITP would 
have no significant impacts on the quality of the environment.

    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: January 6, 2021.
Angela Somma,
Chief, Endangered Species Division, Office of Protected Resources, 
National Marine Fisheries Service.
[FR Doc. 2021-00303 Filed 1-8-21; 8:45 am]
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