A Federal Appeals Court Ruling Might Force Broadwater, Millstone and Other Energy Facilities to Use a Technology that Destroys Fewer Fish

The issue of the incredible number of small fish and fish eggs that will be destroyed in Long Island Sound if the Broadwater liquefied natural gas factory is approved got some attention last week after the U.S. Fish and Wildlife Service highlighted it in its comments on Broadwater’s inept environmental impact statement. The number is mind-boggling – an estimated 275 million small fish and fish eggs a year will be destroyed in the cooling water that the LNG plant and its tankers draw in from the Sound.

Coincidentally, the Soundkeeper and all the affiliated groups in the Waterkeeper Alliance won a lawsuit in federal court that might force Broadwater to use a less destructive technology.

The alliance sued to overturn a decision by the U.S. Environmental Protection Agency that allowed power plants, like Millstone in Waterford and Indian Point on the Hudson, to use a once-through cooling system instead of a closed cycle system. The once-through system works just the way it sounds – water is sucked in from the river or the Sound, pumped through the power plant to cool off the hot equipment, and released back into the river or Sound. In the process, everything in the water gets sucked in as well, and most of it dies. In the old days – 40 years ago – this was a major killer of adult fish, but lawsuits and public pressure, mainly by the Hudson River Fishermen’s Association (the predecessor of Riverkeeper and the Waterkeeper Alliance) forced changes in technology. Now the big fish survive but the small fry don’t. But lots more of them would if a closed cycle system – a system that keeps the water in the plant longer and doesn’t constantly suck up new water – were used.

Soundkeeper Terry Backer sent me a press release and backgrounder on the court case. Here’s an excerpt from the press release:

A three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled Thursday that EPA cannot allow power plants to kill a trillion fish per year through their cooling water intakes. Cooling water intakes gulp in billions of gallons of river, lake and coastal water to cool power plant machinery. Along with the water, these intakes devour countless fish and fish larvae, devastating fish populations across the country.

… the court found that regulations issued by EPA in 2004 improperly rejected “closed cycle cooling,” a technology that cools plant machinery while nearly eliminating the need for large infusions of fresh water. This technology also greatly reduces the massive fish kills associated with power plant operations. The court also found that EPA violated the law by placing the profits of power companies above the protection of America’s fisheries, defying the direct mandate of Congress in 1972 to EPA to stop these unnecessary impacts.

And here’s some information from the backgrounder:

Every year, electric generating and industrial plants withdraw more than 100 trillion gallons from U.S. waters for cooling, and kill the overwhelming majority of organisms in this massive volume by entraining them into the facility or impinging them on intake screens. This staggering mortality – trillions of fish, shellfish, plankton and other species at all life stages – has stressed and depleted aquatic, coastal and marine ecosystems for decades, and has contributed to the collapse of some fisheries.

A single large power plant can utilize hundreds of millions or even billions of gallons of cooling water per day before discharging the heated effluent directly into a lake, river or ocean. In contrast, a closed-cycle cooling system, which recirculates most of the water after dissipating the heat in a cooling tower and is standard technology for new plants, cuts withdrawals and fish kills by more than ninety-five percent.

Section 316(b) of the Clean Water Act requires such facilities to employ the “best technology available [BTA] to minimize adverse environmental impact.” Despite this direct mandate and the decades-old availability of cooling towers, industrial pressure and EPA neglect has prevented effective regulation.

In 1993, after years of frustration at agency failure to require protective technology, Soundkeeper and a coalition of environmental groups led by Riverkeeper sued to force EPA to finally promulgate cooling water intake standards, Riverkeeper, Inc. v. Whitman, U.S. District Court, Southern District of New York, No. 93-Civ.0314 (AGS).) and won a consent decree requiring EPA to promulgate such standards. The Phase I and Phase II rules were issued pursuant to that consent decree.

This can only be good news. How many power plants draw cooling water from Long Island Sound? I wish I knew. Millstone certainly. There are also power plants in Norwalk and Northport. Presumably EPA will have to at least consider making those plants change their cooling technology. If Broadwater and the tankers that will supply it with natural gas have to consider and study and then pay for the new technology, maybe it will delay them long enough to make their obscene LNG terminal dead in the water. And if not, at least it will not be as destructive.