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# ****'" Ms. Patricia Kurkul, Regional Administrator National Oceanic and AtmosphericAdministration National Marine Fisheries Service Northeast Region 55 Great Republic Drive Gloucester, MA 01930-2276
SUBJECT: NATIONAL MARINE FISHERIES SERVICE LETTER DATED AUGUST 26, 2011, REGARDING THE ENDANGERED SPECIES ACT, SECTION 7 CONSULTATION FORTHE PROPOSED LICENSE RENEWAL OF INDIAN POINT NUCLEAR GENERATING UNIT NUMBERS 2 AND 3

Dear Ms. Kurkul:

I am writing in response to your letterdated August 26, 2011, regarding the draft Biological Opinion prepared bythe National Marine Fisheries Service (NMFS) forthe proposed license renewal of Indian Point Nuclear Generating Unit Numbers 2 and 3 (IP2 and IP3). As you are aware, the staffofthe U.S. Nuclear Regulatory Commission (NRC orthe staff) provided comments on the draft Biological Opinion bye-mail on September6, 2011, and indicatedthat it would respond separately to the issues raised in your letter. This letter providesthat response; in addition, the staff herein requests informationfrom NMFS concerning an additional species (Atlantic sturgeon) thatwas not addressed in your letter dated August 26 orthe draft Biological Opinion, forwhich the NRC staff had requested a NMFS response in its December2010 Revised Biological Assessment. Response to NMFS LetterdatedAugust26, 2011

In your letterdated August 26, 2011, you commented on a numberof matters, including 1) the timing ofthe NRC's Endangered Species Act (ESA) Section 7 consultation with NMFS in light of the ongoing NewYork State Pollutant Discharge Elimination System permit (SPDES permit) proceeding, 2) thetiming ofthe NRC's consultation with NMFS in light ofthe ongoing Clean WaterAct Section 401 proceeding (also before NewYork State), 3) the NRC's legal authorityto 'approve and enforce conditions

...to minimize, monitor, and report incidental take resulting from the operation ofthefacility;'and 4) the NRC's'1egal basis by which it retains discretionary involvement or control overthe action in orderto reinitiate consultation if[a Biological] Opinion is finalized and any criteria for initiation are met at a later date:' The staffsviews are setforth below.

I. Timing ofthe NRC's consultation in light ofthe ongoing SPDES proceeding

As your staff noted in the draft Biological Opinion, the SPDES permit currently in force for IP2 and IP3was issued in 1987. That permit continues in force because the previous owners of IP2 and IP3 submitted a timely renewal application to the NewYork State Department of Environmental Conservation (NYSDEC). Sincethat application was submitted, IP2 and IP3, along with other Hudson River power plants, developed a draft environmental impact statementP. Kurkul 

### - 2 ­ (completed in 1999) and NYSDEC issued afinal environmental impact statement (in 2003). NYSDEC issued a draft SPDES permit in 2003 and a revised draft permit in 2004. The SPDES permit has been, and remains, the subject of adjudication within the State of NewYork, and a final SPDES permit has not yet been issued. As a result, the 1987 permit

- which had a stated term offive years - has now been in effectfor 24 years. The NRC is not a partyto the NewYork State litigation, and does not control the SPDES review orthe New York adjudicatory processes. Because ofthe protracted litigation overthe SPDES permit, the staffcannot determinewith reasonable certainty when or ifa new SPDES permitwill enter into force, orwhat the terms ofsuch a permit will be. Nonetheless, the NRC is required to move forward with its review ofthe license renewal application (LRA) for IP2 and IP3. As a result, the NRC has entered into consultation with NMFS underthe ESA assuming that the existing SPDES permit continues in force during the term ofa renewed operating license. As I explain in Section IV, below, the staff retains the authorityto reinitiate consultation should a change to the SPDES permit meetthe criteria for ESA Section 7 reinitiation.

II. Timing ofthe NRC's consultation with NMFS in light ofthe ongoing NewYork State Section 401 proceeding

In your letter dated August 26, you noted that "the proposed action seems very uncertain given NYSDEC has denied Entergy's requestfor a Clean WaterAct Section 401 WaterQuality Certification based on its initial and amended application."

The staff is aware ofthe uncertaintythat exists regarding the Clean WaterAct (CWA) Section 401 Water Quality Certification request. The staff noted, in its December 2010final supplemental environmental impact statement, that NYSDEC had issued a Notice of Denial regarding the CWA Section 401 Water Quality Certification on April 2, 2010. The staffalso noted that the matter is currently subjectto a NYSDEC adjudicatory process, the outcome of which is uncertain. Further, ifthe NYSDEC were to grant a Section 401 certification to Entergy, NYSDEC could laterchange or revoke the certification to consider new information ornew technologies, among other reasons. The NRC is therefore unable to predict with reasonable certaintywhether awaterquality certification will be issued, what the terms ofthat certification might entail, orwhetherthe certification would remain in effect, unchanged, throughout the term ofa renewed NRC operating license (if renewed licenses were to be issued). As you may be aware, Entergy has asserted to the NRC (in a series of letters beginning on June 21 ofthis year) that New York State had waived its Section 401 certification authority because afinal decision was not completed within one yearafter Entergy submitted its April 2009 Section 401 certification request. NYSDEC, however, has asserted that its April 2, 2010, letterformally denied certification to Entergy, and that Entergy's appeal from that denial does not alterthe finality ofthe State's denial. Notwithstanding the uncertain outcome of New York's Section 401 Water Quality adjudication, the NRC is required to move forward with its review ofthe LRA as submitted by Entergy. For this reason, the staff has undertaken to reviewthe LRA, to issue a Biological Assessment (as later revised), and to enter into consultation with NMFS underthe ESAwithout assuming a particular outcome ofthe Section 401 proceeding. Should the Section 401 certification issue be resolved, the staffwould considerthe effect ofthat outcome on the IP2 and IP3 operating licenses.P. Kurkul 

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III. The NRC's legal authority to "approve and enforce conditions

...to minimize, monitor, and report incidental take resulting from the operation ofthe facility

..."

The staffagrees with your assertion that the ESA creates different obligations for the NRC than does the CWA, and that the NRC's obligations underthe ESA continue despite its lackof authority over CWAcooling systems issues. As you may know, the NRC has imposed requirements on a substantial numberofoperating nuclear reactors to protect endangered species. Our research indicates that NMFS or the U.S. Fish and Wildlife Service (FWS) have developed Biological Opinions for 15 nuclear power plants; 11 ofthese plants hold NRC licenses that contain reporting requirements related to the ESA. Further, six ofthese plants' licenses specifically require the licenseesto comply with the terms and conditions ofa NMFS Biological Opinion. Indeed, the NRC staff recently added a license condition at the license renewal stage for one ofthese facilities

- Oyster Creek in NewJersey

- after consultation with your staff.

In addition to those plants for which NMFS or FWS has developed a Biological Opinion, many plants' licenses, including the IP2 and IP3 licenses, contain requirements for licenseesto report the occurrence ortake ofa species listed underthe ESA. In the NRC'steleconferencewith NMFS on June 20, 2011, the NRC staffindicated that several NRC licenses contain references to the terms and conditions ofa Biological Opinion. Following anotherteleconference on June 22,2011, the NRC staffconveyed to your staffa copy ofthe existing IP2 and IP3 Appendix B technical specifications (part ofthe existing IP2 and IP3 licenseswith which Entergy must comply now, and with which Entergywould have to continue to comply in the event the IP2 and IP3 licenses are renewed). These technical specifications require Entergyto report to NRC "any occurrence ofan unusual or important eventthat indicates or could result in significant environmental impact causally related to plant operation," including "unusual mortality or occurrence ofany species protected by the (ESA]."

As ourconsultation with NMFS progresses, the staff looks forward to developing appropriate languageto ensure that the terms and conditions of NMFS's final Biological Opinion for IP2 and IP3 will be enforced.

IV. The NRC's "legal basis by which it retains discretionary involvement or control over the action in orderto reinitiate consultation if [a Biological] Opinion is finalized and any criteria for initiation are met at a later date."

The staff's legal authority over NRC licensees does not cease once the NRC has made a decision regarding license renewal. Ifthe NRC ultimately issues renewed licensesfor IP2 and IP3, the NRC will retain oversight ofthe plants' operations throughouttheterm ofthe renewed licenses. Further, ifthe NRC denies the license renewal application, the NRC will continue to oversee Entergy's possession of nuclear materials and its clean-up ofthe IP2 and IP3 site until it meets NRC's site release criteria.

Tothe extentthatthe IP2 and IP3 site continues to host NRC-licensed and -regulated activities (which would occur even in the absence ofa renewed license), the NRC retains legal authority to enforce the license requirements orto take such other actions as it may deem to be appropriate. Thus, should any ofthe criteria for the reinitiation ofconsultation occur, the staff would reinitiate consultation, as it has donefor other nuclearfacilities in the past. As you mayP. Kurkul -4­
know, the NRC reinitiated ESA Section 7 consultation forthe Brunswick plant in North Carolina (in 1999), the Crystal River plant in Florida (2001), the Oyster Creek plant in NewJersey (2000 and 2005), the Salem and Hope Creek plants in NewJersey (1990,1991, and 2010), the St. Lucie plant in Florida (2002 and 2005), and the Turkey Point plants in Florida (2011; consultation with FWS). Such actions would similarly be taken by the stafffor IP2 and IP3, if necessary orappropriate.

RequestforInformation on Atlantic Sturgeon

In addition to the matters discussed above, the staff requests yourviews on a matterthatwas not addressed in your letterofAugust 26, 2011. Specifically, NIIJIFS has not informed the staff of its views regarding effects of IP2 and IP3 operation on the Atlantic sturgeon. In this regard, your letterof February 16, 2011 (indicating that formal consultation had begun), notedthat Atlantic sturgeon might be addressed in aformal conference between NMFS and the NRC. To date, the staff has received no communications from NMFS related to this species nordoes a formal conference appearto have been initiated. The stafftherefore requests that NMFS inform the NRC as to whether it intendsto initiate aformal conference to address the impacts of IP2 and IP3 operation on the Atlantic sturgeon, orwhetherthis matter should be considered to be resolved.

I appreciate this opportunity to address your concerns, and I lookforward to continued coordination with you and your staffto protect Federa"y-listed species. I also lookforward to completing formal consultations and receiving the final Biological Opinion related to shortnose sturgeon at IP2 and IP3, and any other ESA Section 7 consultation matters currently open between the Northeast Region of NMFS and the NRC. Sincerely,



# OJ9 ''Iv

David J. Wrona, Chief Projects Branch 2 Division of License Renewal Office of Nuclear Reactor Regulation

Docket Nos. 50-247 and 50-286

cc: ListservP. Kurkul



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know, the NRC reinitiated ESA Section 7 consultation forthe Brunswick plant in North Carolina (in 1999), the Crystal River plant in Florida (2001), the Oyster Creek plant in NewJersey (2000 and 2005), the Salem and Hope Creek plants in New Jersey (1990,1991, and 2010), the St Lucie plant in Florida (2002 and 2005), and the Turkey Point plants in Florida (2011; consultation with FWS). Such actions would similarly be taken by the stafffor IP2 and IP3, if necessary or appropriate.

RequestforInformation on Atlantic Sturgeon

In addition to the matters discussed above, the staff requests yourviews on a matterthatwas not addressed in your letterofAugust 26, 2011. Specifically, NMFS has not informed the staff of its views regarding effects of IP2 and IP3 operation on the Atlantic sturgeon. In this regard, your letter of February 16, 2011 (indicating thatformal consultation had begun), noted that Atlantic sturgeon might be addressed in aformal conference between NMFS and the NRC. To date, the staff has received no communications from NMFS related to this species nordoes a formal conference appearto have been initiated. The stafftherefore requests that NMFS inform the NRC as to whether it intends to initiate aformal conference to address the impacts of IP2 and IP3 operation on the Atlantic sturgeon, orwhetherthis mattershould be considered to be resolved.

I appreciate this opportunity to address your concerns, and I lookforward to continued coordination with you and your staffto protect Federally-listed species. I also lookforward to completing formal consultations and receiving the final Biological Opinion related to shortnose sturgeon at IP2 and IP3, and any other ESA Section 7 consultation matters currently open between the Northeast Region of NMFS and the NRC. Sincerely,



### IRA!

David J. Wrona, Chief Projects Branch 2 Division of License Renewal Office of Nuclear Reactor Regulation

Docket Nos. 50-247 and 50-286

cc: Listserv

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ADAMS Accession No.: ML11259A018**~** OFFICE LA: DLR/RPOB GS: DLR/RERB PM: DLR/RERB OGC BC: DLR/RPB2 DWrona NAME YEdmonds DLogan AStuyvenberg STurk DATE 09/20/2011 09/16/2011 09/16/2011**----~=** 09/19/2011 "'-"'==="--_._

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### Q1L_ OFFICIAL RECORD COpy

### Letterto Patricia Kurkul from David J. Wrona dated September 20,2011
SUBJECT: NATIONAL MARINE FISHERIES SERVICE LETTER DATEDAUGUST 26, 2011, REGARDING THE ENDANGERED SPECIES ACT, SECTION 7 CONSULTATION FORTHE PROPOSED LICENSE RENEWAL OF INDIAN POINT NUCLEAR GENERATING STATION, UNITS 2AND 3

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