11/24/14
Billions of fish and hundreds of protected species are killed each year by power plants' water intakes, which federal agencies allow in defiance of laws, environmentalists claim in court.
The Sierra Club and seven other environmental groups sued the National Marine Fisheries Service and the U.S. Fish and Wildlife Service on Nov. 20 in Federal Court.
They claim the defendants issued biological surveys supporting a rule authorizing water cooling intake structures at thousands of power plants, though the systems kill billions of fish each year.
Specifically, May19, 2014 biological opinion and incidental take statement the defendants prepared for the U.S. Environmental Protection Agency ignored the severe threat of harm the cooling systems pose to aquatic life, the groups claim.
The EPA is not a party to the complaint.
"Numerous power plants and other facilities are cooled by 'once-through' cooling systems that draw billions of gallons of water each day from rivers, lakes, estuaries and coastal waters across the country," the 43-page complaint states.
"These systems draw and chemically treat water, run the water through the systems of pipes to absorb waste heat from industrial operations, and then discharge the water back into the waterbody. In doing so, they kill or seriously injure aquatic organisms by crushing larger fish and other animals against the system intake screens ('impingement') and pulling eggs, larvae, and smaller organisms through the system ('entrainment'). These cooling systems collectively destroy tens of billions of fish and hundreds of billions of organisms per year overall, including individuals from at least 266 federally 'threatened' and 'endangered' species, and adversely impact the designated critical habitat of certain species as well. Among the federally 'endangered' and 'threatened' species impacted are species of sea turtles, salmon, trout, sturgeon and marine mammals such as whales and sea lions."
Under the Clean Water Act, the EPA must establish standards for cooling water intake systems that protect aquatic life and their habitats from excessive harm. These regulations apply to approximately 1,065 facilities in California, according to the complaint.
In August this year, the EPA issued a final rule amending the National Pollutant Discharge Elimination System permitting process for facilities that use more than 2 million gallons of water in their cooling water systems each day.
Under the rule, the permitting agency must select from a range of options to reduce impingement and entrainment when issuing a permit. To draft the regulation, the EPA relied on surveys conducted by the defendants to determine the environmental impacts of the proposed regulations.
After reviewing the rule, the groups say, the defendants found that it "would not jeopardize any threatened species or adversely modify any designated critical habitat. They based this conclusion on their review of the EPA's biological evaluation and what the Services deemed best available science. However, the Services noted that there was not sufficient information to evaluate the impacts of the rule fully since the rule provides that measures to control impingement and entrainment will not be chosen until a site-specific NPDES [National Pollution Discharge Elimination System] permit is issued."
The Sierra Club claims the defendants did not use the best available science when issuing their reports and did not fully analyze the proposed rule's impacts to aquatic wildlife and their habitats.
Among other things, they claim the Services' biological opinion is flawed because it relied on "voluntary, future, facility-specific analysis" to conclude that the rule would not harm wildlife; did not analyze the environmental impacts of running a cooling water system authorized under the rule or the various measures to reduce take; and focused on site-specific review rather than analyzing the rule's cumulative impacts.
The Services' incidental take survey also is flawed because it does not specify how the EPA will minimize impacts to threatened species, and does not include measures to protect marine mammals, in violation of the Marine Mammal Protection Act, the complaint states.
"In sum, the Services' biological opinion is arbitrary and capricious because it conflicts with prior positions taken by NMFS [National Marine Fisheries Service] on cooling water intake systems and certain species, it is contrary to or deviates from the best available scientific information, fails to collect and/or evaluate all best available scientific information, is based on assumptions that are not borne out in the record, it does not adequately explain the connection between the no jeopardy and/or no adverse modification findings and the facts, and it relies on subsequent facility-specific analyses, which are an inadequate substitute for ensuring that the rule's implementation will avoid jeopardizing some or all listed species or adversely modifying their critical habitat," the groups claim.
They ask the court to invalidate the defendants' biological opinion and incidental take permit, and issue an injunction setting aside the surveys.
They are represented by in-house attorney Eva Schueller with the Sierra Club's Environmental Law Program.
The plaintiffs are the Sierra Club, the Center for Biological Diversity, the Waterkeeper Alliance, the California Coastkeeper Alliance, Riverkeeper, the Louisiana Environmental Action Network, Suncoast Waterkeeper, and Humboldt Baykeeper.
