ML25076A129

Endangered Species Act Non-Federal Representative Overview for NRC Applicants and Prospective Applicants

ML25076A129
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Issue date:	03/17/2025
From:	Arlene B Office of Nuclear Material Safety and Safeguards
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Download: ML25076A129 (1)

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Endangered Species Act (ESA) Non-Federal Representative (NFR) Overview for NRC Applicants and Prospective Applicants Summary The U.S. Nuclear Regulatory Commission (NRC) is responsible for conducting consultations with the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS)

(collectively, Services) under Section 7 of the Endangered Species Act of 1973, as amended (ESA). The ESA Section 7 regulations at Title 50 of the Code of Federal Regulations (50 CFR) 402 allow consultation to be conducted be either the Federal action agency or by a non-Federal representative (NFR) designated by the action agency. Therefore, there are two ways that the NRC can fulfill its ESA Section 7 responsibilities:

1. The NRC analyzes the impacts of the proposed agency action on federally listed species and critical habitats, prepares a biological assessment (or biological evaluation, as appropriate)1, and conducts informal or formal consultation with the Services, as appropriate; or

2. The NRC designates an NFR to analyze the impacts of the proposed agency action on federally listed species and critical habitats, prepare a biological assessment (or biological evaluation, as appropriate), and communicate directly with the Services.

In conjunction with its implementation of the Fiscal Responsibility Act of 2023 (FRA),

Accelerating Deployment of Versatile, Advanced Nuclear for Clean Energy Act of 2024 (ADVANCE Act), and other efforts of the U.S. Nuclear Regulatory Commission (NRC) to facilitate efficient, timely, and predictable environmental reviews, the NRC staff is designating NFRs to conduct ESA consultations activities on behalf of the NRC on a case-by-case basis.

With the designation of an NFR, the NRC remains ultimately responsible for fulfilling the requirements of ESA Section 7 by guiding and reviewing all work conducted by the NFR.

However, the NFR option can enable a more efficient ESA Section 7 consultation because the licensee or applicant designated as the NFR can work directly with the Services, thereby reducing required NRC staff hours and resources. The NRC staff often relies heavily on information provided by the licensee or applicant to prepare the biological assessment/evaluation, and during consultation, the NRC staff facilitates requests for additional information (RAIs) between the Services and the licensee or applicant. When the licensee or applicant serves as the NFR, the process is more efficient because the NFR can prepare the 1 Biological assessments are required for any agency action that is a major construction activity (50 CFR 402.12(b). A major construction activity is a construction project or other undertaking having construction-type impacts that is a major Federal action significantly affecting the quality of the human environment under the National Environmental Policy Act of 1969, as amended (NEPA). When the NRC staff analyzes the impacts on federally listed species and critical habitats of an action that is not a major construction activity (i.e., a biological assessment is not required by regulation), the NRC refers to this analysis as a biological evaluation.

NMSS/REFS March 2025 biological assessment/evaluation, and the Services and the NFR can communicate directly with one another to address any questions or RAIs that the Services may have.

Background

Endangered Species Act Congress enacted the ESA to protect and recover imperiled species and the ecosystems upon which they depend. The ESA provides a program for the conservation of endangered and threatened plants and animals (collectively, listed species) and the habitats in which they are found, and it prohibits any person from the take of listed species, as defined in the Act, without a permit. The FWS and NMFS are the lead Federal agencies for implementing the ESA and are charged with determining species that warrant listing.

Section 7 Consultation Section 7 of the ESA establishes interagency consultation requirements for actions by Federal agencies. Section 7(a)(1) of the ESA charges Federal agencies to aid in the conservation of listed species. Section 7(a)(2) of the ESA requires that Federal agencies consult with the Services for actions that may affect federally listed species and critical habitats and to insure that their actions do not jeopardize the continued existence of those species or destroy or adversely modify those habitats. Private actions with a Federal nexus, such as construction and operation of facilities that involve Federal licensing or approval, are also subject to consultation.

Therefore, NRC actions such as the issuance of licenses, approval of license amendments, and approval of license termination plans may trigger consultation requirements. Consultation pursuant to ESA Section 7(a)(2) is commonly referred to as Section 7 consultation.

The Services maintain joint regulations that implement ESA Section 7 at 50 CFR Part 402, Interagency CooperationEndangered Species Act of 1973, as Amended. Subpart B prescribes the Section 7 interagency consultation requirements. The NRC also relies upon the Services detailed procedural guidance for conducting Section 7 consultation in Endangered Species Consultation Handbook: Procedures for Conducting Consultation and Conference Activities Under Section 7 of the Endangered Species Act.2 Section 7 consultation may be informal or formal. Generally, the appropriate type of consultation relates to the effect determinations made by the Federal agency. Informal consultation is appropriate when a proposed action may affect but is not likely to adversely affect listed species or designated critical habitats. Formal consultation is appropriate when a proposed action may affect and is likely to adversely affect listed species or designated critical habitats. If take3 of listed species is possible, formal consultation is appropriate.

For proposed species and proposed critical habitats (those species or habitats for which the Services have issued proposed listing or designation rules, but for which final rules have yet to be issued or adopted), the regulations prescribe a process called a conference. Appendix A of NUREG-1555, Environmental Standard Review Plan, Standard Review Plans for Environmental 2 U.S. Fish and Wildlife Service and National Marine Fisheries Service. 1998. Endangered Species Act Consultation Handbook: Procedures for Conducting Section 7 Consultation and Conference. Washington, D.C. Agencywide Documents Access and Management System (ADAMS) Accession No. ML14171A801.

3 Take as defined under the ESA means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."

NMSS/REFS March 2025 Reviews for Nuclear Power Plants, Supplement 1: Operating License Renewal 4 describes formal consultation, informal consultation, and conference in detail.

Non-Federal Representatives The ESA regulations allow Federal action agencies to designate representatives to carry out certain ESA Section 7 consultation activities.

NFR refers to a person designated by the Federal agency as its representative to conduct informal consultation and/or to prepare any biological assessment (50 CFR 402.02). The NFR may:

be an applicant, licensee, or independent consultant or company with appropriate expertise conduct the entire consultation (informal consultation) prepare the biological assessment (formal consultation)

The ESA regulations at 50 CFR 402.08 specify the following additional stipulations regarding NFRs.

The Federal action agency designates the NFR by giving written notice to the consulting Service (FWS or NMFS) of such designation.

If the NFR is not the applicant/licensee, the applicant/licensee must agree on the choice of the designated NFR.

The Federal action agency provides guidance and independently reviews the NFRs biological assessment.

The Federal action agency is ultimately responsible for complying with ESA Section 7 regardless of whether it designates an NFR.

4 U.S. Nuclear Regulatory Commission. 2024. Environmental Standard Review Plan, Standard Review Plans for Environmental Reviews for Nuclear Power Plants, Supplement 1: Operating License Renewal.

NUREG-1555, Supplement 1, Revision 2. Washington, D.C. ADAMS No. ML23201A227.

NMSS/REFS March 2025 High-Level Steps for Informal Consultation with an NFR The ESA Section 7 regulations allow for NFRs to conduct the informal consultation in its entirety. In such cases, the NRC provides guidance and supervision and shall independently review and evaluate the scope and contents of the biological assessment/evaluation. Some of the major milestones associated with informal consultation with an NFR include the following.

1. NRC environmental center of expertise (ECOE) staff meet with applicant (or prospective applicant, if in pre-application stage) to discuss the NFR process.

If applicant is interested in NFR designation, continue with additional steps below.

2. Applicant provides agreement (e.g., e-mail to NRC project manager) to be NFR with oversight from the NRC throughout the Section 7 process.

Agreement may be documented in a meeting summary prepared by the ECOE project manager or in writing from the applicant (e.g., e-mail to NRC project manager).

3. NRC sends letter to the relevant Service notifying the Service of NFR designation.5

4. NRC and NFR hold a meeting to establish a timeline, determine species and critical habitats to be addressed during consultation, and discuss the drafting of the biological assessment/evaluation.

5. NRC staff generates official species list and provides that list to the NFR.

If the consultation is with FWS, NRC staff will designate NFR as an action agency representative in the FWSs Information for Planning and Consultation (IPaC) system.

6. NRC may also provide a suggested outline for the biological assessment/evaluation.

7. NRC and NFR check in, as needed, during biological assessment/evaluation development.

8. NFR submits the draft assessment/evaluation to the NRC for review and comment.

9. Throughout, NFR coordinates with the Service, which may include e-mails, phone calls, and meetings.

NRC staff participate in meetings, as determined necessary, and is CCd on correspondence between the NFR and Service.

10. NFR submits biological assessment/evaluation and request for concurrence to the Service and includes NRC on CC.

11. The Service provides its concurrence, and consultation concludes.

12. NFR submits copies of correspondence documenting the consultation to the NRC (if not already provided).

5 See ESA Consultation Resources on page 6 for examples of such letters.

NMSS/REFS March 2025 High-Level Steps for Formal Consultation with an NFR The ESA Section 7 regulations allow for NFRs to prepare the biological assessment in support of formal consultation. In such cases, the NRC remains responsible for initiating and conducting formal consultation. The applicant or licensee participates in the consultation, as provided in the regulations guiding formal consultation at 50 CFR 402.14.

1. NRC environmental center of expertise (ECOE) staff meet with applicant (or prospective applicant, if in pre-application stage) to discuss the NFR process.

If applicant is interested in NFR designation, continue with additional steps below.

2. Applicant provides agreement (e.g., e-mail to NRC project manager) to be NFR with oversight from the NRC throughout the Section 7 process.

Agreement may be documented in a meeting summary prepared by the ECOE project manager or in writing from the applicant (e.g., e-mail to NRC project manager).

3. NRC sends letter to the relevant Service notifying the Service of NFR designation.6

4. NRC and NFR hold a meeting to establish a timeline, determine species and critical habitats to be addressed during consultation, and discuss the drafting of the biological assessment.

5. NRC staff generates official species list and provides that list to the NFR.

If the consultation is with FWS, NRC staff will designate NFR as an action agency representative in the FWSs Information for Planning and Consultation (IPaC) system.

6. NRC may also provide a suggested outline for the biological assessment.

7. NRC and NFR check in, as needed, during biological assessment development.

8. NFR submits the draft assessment to the NRC for review and comment.

9. Throughout, NRC coordinates with the Service, which may include e-mails, phone calls, and meetings.

NFR is invited to participate in meetings and is CCd on correspondence between the NRC and Service, as appropriate.

10. NFR submits biological assessment to NRC.

11. The NRC initiates formal consultation with the Service.

12. Consultation continues, as specified at 50 CFR 402.14, until the Service issues a biological opinion.

The applicant or licensee participates in the consultation, as provided in the regulations guiding formal consultation at 50 CFR 402.14.

6 See ESA Consultation Resources on page 6 for examples of such letters.

NMSS/REFS March 2025 ESA Consultation Resources ESA and Section 7 Regulations ESA Full Text: https://www.fws.gov/sites/default/files/documents/endangered-species-act-accessible.pdf ESA Section 7 Consultation Regulations: 50 CFR 402 o 50 CFR 402.08, Designation of non-Federal representative o 50 CFR 402.12, Biological assessments o 50 CFR 402.13, Informal consultation o 50 CFR 402.13, Formal consultation ESA Section 7 Guidance FWS ESA Section 7 Handbook: ML14171A801 NUREG 1555, Supplement 1, Revision 2, Appendix A, Interagency Consultations for Ecological Resources: ML23201A227 Online Resources FWSs Information for Planning and Consultation (IPaC) system:

https://ipac.ecosphere.fws.gov/

NMFSs Species Directory: https://www.fisheries.noaa.gov/species-directory/threatened-endangered NMFSs Critical Habitat Mapper: https://www.fisheries.noaa.gov/resource/map/national-esa-critical-habitat-mapper Example NRC Consultation Documents NFR Designation Letters o Brunswick Nuclear Generating Station, Units 1 and 2, continued operations:

ML24218A086 o St. Lucie Plant, Units 1 and 2 (St. Lucie), continued operations: ML24228A296 o Vallecitos Boiling Water Reactor and General Electric Test Reactor decommissioning: ML24330A047 o Paducah Laser Enrichment Facility licensing: ML25028A228

NMSS/REFS March 2025 Biological Assessments and Evaluations o St. Lucie Plant continued operations: ML19093A064 o Diablo Canyon Nuclear Power Plant, Units 1 and 2, (Diablo Canyon) license renewal: ML24299A1677 o San Onofre Nuclear Generating Station, Units 2 and 3, decommissioning:

ML21280A103 o Marsland Expansion Area In Situ Uranium Recovery license amendment:

ML18100A229 Service Letters of Concurrence o FWS concurrence for Diablo Canyon license renewal: ML25006A097 o FWS concurrence for Peach Bottom Atomic Power Station, Units 2 and 3, subsequent license renewal: ML24327A164 o FWS concurrence for Perry Nuclear Power Plant, Unit 1, license renewal:

ML24256A087 o FWS concurrence for Crystal River Nuclear Generating Plant, Unit 3, license termination plan: ML24190A191 o NMFS concurrence for ProTechnics Radioactive Tracer Discharge license amendment: ML23321A109 Service Biological Opinions o NMFS opinion for Salem Nuclear Generating Station, Units 1 and 2, and Hope Creek Generating Station, Unit 1, continued operations: ML23086A091 o NMFS opinion for St. Lucie continued operations: ML22227A052 o FWS opinion for Turkey Point Nuclear Generating, Units 3 and 4, license renewal: ML19221B583 as amended by ML22089A060 NRC Points of Contact Briana Arlene, ESA Consultation Coordinator, briana.arlene@nrc.gov Mitchell Dehmer, Environmental Scientist, mitchell.dehmer@nrc.gov Shannon Healy, Environmental Scientist, shannon.healy@nrc.gov 7 NOTE: Biological evaluation incorporated into Sections 3.8 and Appendix C.1 of the supplemental environmental impact statement (SEIS).