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###### Department of the Interior

###### Fish and Wildlife Service

          - [FWS-R3-ES-2009-N180; 33430-1122-0000 F2]

# AGENCY:

Fish and Wildlife Service, Interior.

# ACTION:

Notice: Receipt of application for an incidental take permit; notice of availability.

# SUMMARY:

Exelon Inc. (Applicant) has applied to the U.S. Fish and Wildlife Service (us, Service) for an incidental take permit (ITP) under the Endangered Species Act of 1973, as amended (Act). The proposed permit duration is 24 years. The Applicant has prepared a Habitat Conservation Plan (HCP) to address potential impacts to two mussel species. We have made a preliminary determination that the HCP and permit application are eligible for categorical exclusion under the National Environmental Policy Act of 1969 (NEPA). The basis for this determination is contained in an Environmental Action Statement and low-effect screening form, which are also available for public review.

# DATES:

To ensure consideration, please send your written comments by October 8, 2009.

# ADDRESSES:

Send written comments to Richard C. Nelson, Field Supervisor, by U.S. mail at U.S. Fish and Wildlife Service, Rock Island Field Office, 1511 47th Ave. Moline, IL 61265, or by fax to (309) 757-5807.

# FOR FURTHER INFORMATION CONTACT:

Ms. Jody Millar (309) 757-5800.

# SUPPLEMENTARY INFORMATION:

                    Exelon Inc. (Applicant) has applied to the U.S. Fish and Wildlife Service (us, Service) for an incidental take permit (ITP) under the Act (16 U.S.C. 1531*et seq.*) The proposed duration of the permit is 24 years. The Applicant has prepared a Habitat Conservation Plan (HCP) to address potential impacts to two mussel species:                     *Lampsilis higginsii*                     (Higgins eye pearlymussel), federally listed as endangered, and                     *Plethobasus cyphyus*                     (sheepnose mussel), a candidate for listing. Exelon's draft HCP addresses three specific proposed covered activities:                

(1) Implementation of an alternate thermal standard (ATS) for discharge waters associated with the operation of the Quad Cities Nuclear Station,

(2) Maintenance dredging associated with water intake structures, and

(3) Removal of Edison Pier.

                    We have made a preliminary determination that the HCP and permit application are eligible for categorical exclusion under NEPA (42 U.S.C. 4321*et seq.*). The basis for this determination is contained in an Environmental Action Statement and low-effect screening form, which are also available for public review.                

## Availability of Documents

                    Individuals requesting copies of the application and draft HCP should contact the U.S. Fish and Wildlife Service by telephone at (309) 757-5800 or by letter (                    *see***ADDRESSES**                    ). Copies of the draft HCP are also available for public inspection during regular business hours at the Rock Island Field Office (                    *see***ADDRESSES**                    ), or at the Service's Regional Web site at                     *http://www.fws.gov/​midwest/​Endangered/​permits/​hcp/​index.html.*

## Public Availability of Comments

                    Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.                          ( print page 46221)    

## Background

                    Section 9 of the Act and its implementing Federal regulations prohibit the take of animal species listed as endangered or threatened. The definition of take under the Act includes the following activities: To harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect listed animal species, or to attempt to engage in such conduct (16 U.S.C. 1538). We have principal trust responsibility for the conservation and protection of threatened and endangered species under the Act. Section 10 of the Act, 16 U.S.C. 1539, establishes a program whereby persons seeking to pursue activities that otherwise could give rise to liability for unlawful “take” of federally protected species may receive an ITP, which protects them from such liability. To obtain an ITP, the applicant must submit an HCP and the taking must be incidental to, and not the purpose of, an otherwise lawful activity,                     *Id.*                     §§ 1539(a)(1)(B), 1539(a)(2)(A). Once we have determined that the applicant has satisfied these and other statutory criteria, we may issue the ITP.                

Exelon Inc. owns and operates Quad Cities Nuclear Station (QCNS), a nuclear power station located on the east (Illinois) shoreline of Pool 14 on the Mississippi River, at River Mile (RM) 506.7, approximately halfway between Lock and Dam 13 (upstream) at RM 522.5 and Lock and Dam 14 (downstream) at RM 493.3.

## Covered Activities

Exelon Inc. is requesting that an alternate thermal standard (ATS) be issued for Quad Cities Nuclear Station under section 316(a) of the Clean Water Act, (33 U.S.C. Sec.1326(a)). The ATS would include:

(1) Changing the method for tracking and regaining excursion hours (during which the plant currently is authorized to exceed thermal limits by up to 3 °F) from a rolling 12-month basis to a calendar year basis (January through December).

(2) Increasing the number of excursion hours available per year from 1 percent (87.6 hours), which is currently allowed by the plant's National Pollutant Discharge Elimination System (NPDES) Permit, to 3 percent (262.8 hours), of which only 1.5 percent (131.4 hours) of those hours may be between 89 °F and 91 °F.

                    (3) Increasing the excursion hour downstream temperature limit by no more than 5 °F (                    *i.e.,*                     91 °F downstream instead of current NPD.S Permit limit of 89 °F in July and August, and 90 °F downstream rather than current NPDES Permit limit of 88 °F in September).                

QCNS currently operates under NPDES permit conditions that allow 87.6 excursion hours per year, during which the plant may cause river temperatures to exceed maximum temperature standards by up to 3 °F. QCNS operated within permit conditions during the period 2000-2005. Excursion hours were only used in 2001 (57.35 hours) and 2005 (42.50 hours). In July and August 2006, QCNS was granted a provisional variance from these permit conditions to address periods of low Mississippi River flows and high ambient river temperatures experienced in the summer of 2006. The provisional variance allowed additional excursion hours (beyond the annual allotment of 87.6 hours) at temperatures up to 5 °F. QCNS used 222.75 excursion hours in 2006, but water temperature during excursion hour events were not allowed to exceed a 5 °F increase, which equates to 91 °F downstream in July, 91 °F in August and 90 °F in September. In 2007, QCNS operated within permit conditions, and 74.0 excursion hours were used in early August.

The new ATS would be adopted following proceedings before the Illinois Pollution Control Board pursuant to the Board's authority to issue ATS under section 316 of the Clean Water Act. Following the Board's decision, the Environmental Protection Agency would incorporate the standards in the NPDES (discharge) permit.

A second covered activity described in the draft HCP involves maintenance dredging activities in front of the plant's intake. QCNS requires a consistent supply of water for safe operations of the two nuclear reactors. Over the past few years (2005, 2007, and 2008), dredging in front of the intake forebay has been a maintenance necessity to achieve the consistent water supply. High water events deposit coarse materials in front of the intake. In October 2005, QCNS contracted a mussel survey in the intake area. Results of the survey indicated that impacts associated with maintenance dredging would be limited to a few common species (threehorn, threeridge, hickorynut, and plain pocketbook) of freshwater mussels. All other species were represented by two individuals or less. One butterfly mussel was also found in the survey. An existing dredging permit (CEMVR-OD-P-2006-1856) allows dredging within a 500′ × 700′ area in front of the station's forebay. QCNS does not expect to increase the size of the dredging area. QCNS anticipates that dredging will be necessary in the near future; consequently, this activity is being included in the draft HCP. Maintenance dredging is assumed to occur once every 2 years over the life of the proposed permit. If the dredging area needs to be expanded from the current levels in the future, Exelon will consult with us prior to such activities.

A third covered activity in the draft HCP involves the removal of a structure known as the Edison Pier (RM 506.8L), which has been in existence since the initial building process of QCNS in the late 1960s. Although there are no immediate plans to remove this structure, preliminary demolition planning has occurred and this project could begin in the next few years. The process of removing this structure would extend a minimal distance out into the river channel, and could potentially impact any mussels in the area. It is important to note that coverage by this HCP does not exempt an activity from other local, State and Federal regulations, including permits issued by the U.S. Army Corps of Engineers.

## Impact Assessment

The purpose of an HCP is to ensure incidental take will be minimized and mitigated to the maximum extent practicable and will not appreciably reduce the likelihood of the survival and recovery of this species in the wild. Exelon designed the draft HCP in close consultation with us to ensure the planning area will continue to support suitable habitat for the species, while allowing for incidental take from the proposed activities.

To facilitate the development of the HCP, Exelon retained Ecological Specialists, Inc. (ESI) to evaluate potential direct and indirect impacts associated with adopting an Alternative Thermal Standard on covered species within the study area (RM 503.0 to 506.9). A copy of ESI's report is appended to the draft HCP. ESI was also retained to conduct mussel surveys in the area associated with maintenance dredging and Edison Pier.

Exelon proposes to minimize, mitigate, and monitor the impacts of taking listed species by implementing the following measures:

                    (1) Fish propagated at the QCNS will be inoculated with Higgins eye pearlymussel and sheepnose mussel glochidia. QCNS will work with the Service and other partners to develop parameters for determining appropriate species augmentation/reintroduction sites and rates with regard to protection of native resident genetics. Methods include free release of fish inoculated with Higgins eye pearlymussel and                           ( print page 46222)                        sheepnose mussel glochidia in select locations, and use of cage culture techniques for rearing of Higgins eye pearlymussel and sheepnose mussel in select locations.                

(2) Outreach to universities focused on soliciting studies related to temperature and mussels, in situ or in conjunction with the lab facilities at QCNS.

(3) Implementation, effectiveness, and validation monitoring, including mussel bed monitoring, monitoring of temperature studies, long-term fish monitoring (ongoing), and use of adaptive management techniques will be used throughout the length of the permit.

## Decisions

We will evaluate the permit application, the HCP, and received comments to determine whether the application meets the requirements of section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended. If the requirements are met, we will issue an incidental take permit to the Applicant for take of the Higgins eye pearlymussel and sheepnose mussel incidental to the otherwise lawful activities of the project. We will not make a final decision until after the end of the 30-day comment period and will fully consider all comments we receive during the comment period.

Dated: August 25, 2009.

Richard C. Nelson,

Field Supervisor, U.S. Fish and Wildlife Service.

[FR Doc. E9-21513 Filed 9-4-09; 8:45 am]

BILLING CODE 4310-55-P