Amicus Curiae Brief — Utility Water Water Act Group Group v. Riverkeeper, Inc. (Nos. 07-597, 07-588, 07-589)

Supreme Court brief2009

Ask Donna

What actually matters in this document.

Text

Ric 3° eee eT

\S Nos. 07-588, 07.569 and 07-597

IN THE

Supreme Court of the Anited @tates

ENTERGY CORPORATION, ‘

Petitioner,

Vv.

ENVIRONMENTAL PROTECTION AGENCY, et al.,

PSEG FossIL LLC, et al.,

Petitioners

Vv.

RIVERKEEPER, INC., et ai.,

UTILITY WATER ACT GROUP,

Petitioner

RIVERKEEPER, INC., et ail.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

AMICUS CURIAE BRIEF OF NATIONAL

WILLIFE FEDERATION AND SIERRA CLUB

IN SUPPORT OF RESPONDENTS

RIVERKEEPER, INC., ET AL.

_—<—-— Sr or

DAVID K. MEARS *

ENVIRONMENTAL AND NATURAL

RESOURCES LAW CLINIC

VERMONT LAW SCHOOL

P.O. Box 96

South Royalton, Vermont 05068

* Counsel of Record (802) 831-1627

WiILSON-EPES PRINTING CO.. INC — (202) 789-0096 — WaSHINGTON,D C 20002

TABLE OF CONTENTS

TABLE OF AUTHOR EUEG ......00..ccccccccceccosesesees:

I a I sails isdiivihecdescenisnsnaiinetecee

SUMMARY OF ARGUMENT .......0000........ee

EL dbicnsiiniinssthntitnisenbiiaitinttiidenivacnrinddntees

Once-through Cooling Water Systems

Cause Serious Harm to the Ecological

Integrity of Our Nation’s Waters .............

A. The Harm to Aquatic Ecosystems

from Once-through Cooling Water

Systems is Significant and Complex ..

Impingement and Entrainment by

Once-through Cooling Water

Systems Kills or Injures Large

Numbers of Many Different

Water-Dependent Species...............

. Killing or Injuring Large Numbers

of §Water-Dependent Species

Causes Far Reaching Damage to

the Ecological Integrity of Our

EE eee

B. The Cumulative Impacts of Once-

through Cooling Systems Combined

with Other Anthropogenic Damage

Impedes Restoration of the Ecological

Integrity of Our Nation’s Waters........

Once-through Cooling Water Sys-

tems Impact Aquatic Ecosystems

Already Stressed from Other

PN I intncccaxisccsencrndenneinn

(i)

TABLE OF CONTENTS—Continued

2. Aquatic Ecosystems Do Not Carry

a Fish “Surplus” Available for

Destruction by Once-Through

Cooling Water Systems...................

C. There is Insufficient Information or

Knowledge to Predict the Extent to

Which Once-through Cooling Water

Systems Impact the Ecological Integ-

rity of Our Nation’s Waters.................

Il. Allowing Power Plants to Damage

Aquatic Ecosystems Based On a Cost-

Benefit Analysis is Not Consistent with

the Objective of the Clean Water Act to

Restore and Maintain the Ecological

Integrity of Our Nation’s Waters .............

A. Section 316(b) Must Be Understood

in the Context of the Objective of the

Clean Water Act to Restore and

Maintain the Ecological Integrity of

thhe Nation's Waters. .......ccccccccsccsceosseeee

B. Congress’ Choice to Impose Stringent

Technology-Based Controls on Power

Plant Cooling Water Intake Struc-

tures was Necessary given their

Uncertain Yet Potentially Major

Impacts on Aquatic Ecosystems .........

C. The Value of the Ecological Integrity

of the Nation’s Waters Cannot be

RS RR a ee AES AR Sey SO Ne

I secicersnintsareniedentiteenecniieemnnsdvaniients

Page

ill

TABLE OF AUTHORITIES

CASES Page

American Textile Mfrs. Institute, Inc. v.

Donovan, 452 U.S. 490 (1981) .................. 33

City of Milwaukee v. Illinois and

Michigan, 451 U.S. 304 (1981)................. 17

PUD No. 1 of defferson County ov.

Washington Dept. of Ecoiogy, 511 U.S.

I ccircennscudneicennibiodabiepinaciinaniins steienenes 29

Riverkeeper, Inc. v. U.S. Environmental

Protection Agency, 358 F.3d 174 (2d Cir.

Tire Ee isididinisiecbdcenadednsmesnvemdiigiaeaiaieinibleniedinies 3

U.S. v. Riverside Bayview Homes, 474 U.S.

tin tution dedihiacdtuidiindealaMantamsives 29, 35

STATUTES

I I i ia ncitpirccidepdnasddenetiueieiduiin 17

Be es Ae ID ciciteesscissosscnsnessiivarseosianss 1, 30, 32

REGULATIONS

I, I saan inasnincensipitslrneaaeesnieal 13

NE I IID i cicinecinesepnencancidenveveuciaciin passim

Be I BIE in sicccceunncssxcsuanscoidsdtbinodasies 12, 35

I, ST rnc saniceneueninassinannndiauiciiuiens 9, 35

OTHER REFERENCES

Barnthouse et al., Populetion Biology in

the Courtroom: the Mudson River

Controversy, (1984), Bioscience, vol. 34,

RE REE EA RN ay os SRT AED ed Ae 25

Barnthouse et al., What We Didn’t Learn

About the Hludson River, Why and What

it Means for Environmental Assessment,

Am. Fisheries Monograph 4 (1988).......... 25

TABLE OF AUTHORITIES—Continued

Beck, et. al., Analysis of Inner Plant

Passage of Estuarine Biota, American

Civil Engineering (1974)........................005

Boreman, Surplus Production, Compensa-

tion, and Impact Assessments of Power

Plants, Environmental Science & Policy

Se ee iciininitictncnintbeatetianinmiiatinnininiintaeiinines

Bozek, A towering challenge, Electrical

Perspectives, January/February 2002 .....

Brief of Petitioner Utility Water Act

Group, Entergy Corp. v. EPA, et al.

iin cin eenarnitiei nanibiiieaeabieaiaing

Brief of Petitioners Entergy Corp, PSEG

Fossil LLC and PSEG Nuclear LLC,

Entergy Corp v. EPA, et al. (July 14,

Page

EE cepceieunidinichpdinesinbenintiniresmmnincceiccensinens 5, 13, 16

Clark, et. al., Electric power plants in the

IIS IE III fecccnssnscccconccsenssonscescaies

Collier, M., R.H. Webb and J.C. Schmidt,

U.S. Geological Survey, Dams and

Rivers: Primer on the Downstream

BFOCS OF TBARS (LBGS) 000.002000000ccccesccceseveses

Dayton, Reversal of the burden of proof in

fisheries management. 279 Science

En indpeshectietasiahdeiadiatiaaitimptiieidiplieiamiiinadbuittieenns

Encyclopedia Britannica Online at

http://www.britannica.com/EBchecked/to

pic/22290/anadromous-fish.......................

Eric A. Davidson, You Cant Eat GNP:

Economics As If Ecology Mattered

(Perseus Publishing 2000)........................

TABLE OF AUTHORITIES—Continued

Food and Agricultural Organization of the

United States, Climate Change will have

Strong Impact on Fisheries: Decrease in

Fisheries Production Likely - FAO Holds

Scientific Symposium (July 2008)............

Hall, et al., Environmental Impacts of

Industrial Energy Systems in _ the

Coastal Zone, Annual Review of Energy

I Fe tet evccintinisaniniiinitieiianiinins

Hamilton, et al., Water Quality in the

Nation’s Streams and Aquifers, Over-

view of Selected findings 1991-2001,

USGS Survey, Circular 1265 (2004) ........

Heinzerling, et. al., Priceless: On Knowing

the Price of Everything and the Value of

CR vcdteastnchcccnieststensuiibeahanainadiaaes

Hutson, et al., Estimated Use of Water in

the United States in 2000, USGS

Circular 1268 (released March 2004,

revised April 2004, May 2004, February

SII cessessscccscaihtsdiesmeneaceeitgeinisnetiepaenicieaigeaiame ie

Independent Scientific Advisory Board,

Non-Native Species Impacts on Native

Salmonids in the Columbia River Basin

I eretereccsstisonhnixeodetieinain tiataneeean

Intergovernmental Panel on Climate

Change, Climate Change 2007: Synthe-

GES Te ee iitecisnniciiiempsmanie

J. R. Karr, Bioassessment and Non-Point

Source Pollution: An Overview (1990)......

Page

3, 31

TABLE OF AUTHORITIES—Continued

J.A. Hutchings & R.A. Myers, What can be

learned from the collapse of a renewable

resource? Atlantic cod, Gadus morhus, of

New Foundland and Labrador, Cana-

dian Journal of Fisheries and Aquatic

laa haadnceciooese

J.B.C. Jackson, et al., Historical over-

fishing and the recent collapse of coastal

ecosystems, Science (2001)........................

Kennish, Practical Handbook of Estuarine

and Marine Pollution. (1996) ...................

Langford, Electricity Generation and

Ecology of Natural Waters (1983).............

Laws, Aquatic Pollution (3rd ed. 2000) .......

May and van Rossum, The Quick and the

Dead: Fish Entrainment, Entrapment,

and the Implementation and Application

of Section 316(b) of the Clean Water Act,

SN I I, CIID vicinvnsintansninssnnsasasesecnsce

Morgan et. al., Biocides, in POWER PLANT

ENTRAINMENT (J.R. Schubel & Barton C.

a ED on icneddicedocacientvecsseions

National Academies of Science, Assessing

the TMDL Approach to Water Quality

Management, Commission on Geo-

sciences, Environment and Resources

dla ainda sia piidstiainadedgubednecsoes

National Academies of Science, Clean

Coastal Waters: Understanding and Re-

ducing the Effects of Nutrient Pollution

eo in cea cadenenesinun

Page

vil

TABLE OF AUTHORITIES—Continued

National Marine Fisheries Service Eco-

system Principles Advisory Panel,

Ecosystem-based fishery management: A

Report to Congress (1998) ...............00..000008

National Research Council, Committee on

Ecosystem Management for Sustainable

Marine Fisheries, Ocean Studies Board,

Sustaining Marine Fisheries (1999).........

National Research Council, Restoration of

Aquatic Ecosystems (1992) ..............00.0.002.

Newbold, et. al., /mpacts of cooling water

withdrawals on fish populations at a

regional scale, 41 Environmental

Science & Technology (2007)....................

NYDEC, Clean Water Act Section 316(b),

statement provided to U.S. EPA at

public meeting to discuss adverse envi-

ronmental impacts resulting from coo-

ling water intake structures, New York

State Department of Environmental

Conservation, Division of Fish, Wildlife,

and Marine Resources, June 29, 1998 .....

O. Kinne, Temperature, MARINE ECOLOGY

ann. cisisdcieleaiaeaaidiaidaiaiaiaiisiuniane idtinaiasicniinadsal dace ossubeian

O’Connor et. al., The effects of power

plants on productivity of the nekton,

I es

Odum et. al., Fundamentals of Ecology

gat LS REISS RN eek Oe RNa EN eae

Percival, Who’s Afraid of the Precautionary

Principle? 23 Pace Envtl. L. Rev. (2005)..

Page

7,8

vill

TABLE OF AUTHORITIES—Continued

Page

Rose, Why Are Quantitative Relationships

Between Environmental Quality and

Fish Populations So Elusive?, Ecological

FES GP steccrsccoccscsccensccsscoseseseses 26

Schubel, et. al., Power Plant Entrainment

EUeiipcndichinceuidiccaibiabehiniaiivannpinmuademinnns 7, 8, 12,16

Smith et. al., Water Quality Trends in the

Nation’s Rivers, Science, March 1987 ...... 18

Snakehead Scientific Advisory Panel, First

Report to the Maryland Secretary of

Natural Resources (July 2002) ................. 20

Super and Gordon, Minimizing Adverse

Environmental Impact: How Murky the

Waters, in Dixon, et al., DEFINING AND

ASSESSING ADVERSE ENVIRONMENTAL

IMPACT FROM POWER PLANT IMPINGE-

MENT AND ENTRAINMENT OF AQUATIC

IN II ccisiesceccinaciiskatadcpdatiiihaiuaddciaien 4

U.S. Commission on Ocean Policy, An

Ocean Blueprint for the 2Ist Century

Pisat Mager'd (BOOS) ........cc0ccecccscescovccesss 19, 20, 21

U.S. Environmental Protection Agency,

Case Study Analysis for the proposed

Section 316(b) Phase II Existing Facili-

ties Rule (February 28, 2002).............. 10, 15, 26

U.S. Environmental Protection Agency,

Economic and Benefits Analysis for the

Final Section 316(b) Phase II Existing

Facilities Rule (February 2004)......... 6,7, 10,13

U.S. Environmental Protection Agency,

In re Brunswick Steam Electric Plant,

USEPA, Decision of the General

Counsel, FPA GCO (June 1, 1976)........... 31

TABLE OF AUTHORITIES—Continued

Page

U.S. Environmental Protection Ayency,

National Estuary Program Coastal

Condition Report (June 2007) ...............4.. ' 419

U.S. Environmental Protection Agency,

National Water Quality Inventory:

Report to Congress, 2002 Reporting

CE CEPIRIIEE TIE P vececcsccesceccscnsssscesessesces 18

U.S. Environmental Protection Agency,

Regional Analysis Document for the

Final Section 316(b) Phase II Existing

Facilities Rule (February 12, 2004)......... passim

U.S. Environmental Protection Agency,

Regional Studies for the Final Section

316(b) Phase II Existing Facilities Rule

SRE Re eaeaer nine moo 3, 4, 26

U.S. Environmental Protection Agency,

Wadeable Streams Assessment: A Col-

laborative Survey of the WNation’s

Streams (December 2006)..................000008 19

U.S. Fish and Wildlife Service, Fish

Passage Program, Overview..................--. 20

U.S. Geological Survey, Zebra Mussels

Cause Economic and Ecological Prob-

lems in the Great Lakes (2007)................. 20

Versar, Vulnerability of Biota of Fresh-

water (Rivers, Lakes, Reseviors) versus

Marine (Tidal River, Estuary, Ocean)

Habitats to Entrainment and Impinge-

I Se CD ektnciias ticicinctmintsnincciigenin 15

INTEREST OF AMICI

Amici Curiae are non-profit organizations commit-

ted to protecting our Nation’s waters for the use and

enjoyment of their members.’ Collectively, these

organizations work to foster public understanding of

and participation in solutions to the problems

resulting from human impacts on rivers, lakes, bays,

estuaries and oceans. Amici Curiae seek to promote

the objective of the Clean Water Act (“the Act”) to

restore and maintain the chemical, physical, and

biological integrity of the nation’s waters, as well as

its national goal to ensure the protectior. and

propagation of fish, shellfish, and wildlife.

Based upon these interests, these groups join in

filing this brief in support of Respondents’ efforts to

invalidate the United States Environmental Protec-

tion Agency’s (EPA’s) regulations for cooling water

intake structures at large, existing power plants.

Amici curiae ask this Court’s ruling that EPA may

not, in light of the complex and significant impacts of

cooling water intake structures on aquatic ecosys-

tems, employ cost-benefit analysis when making a

“best technology available” determination under

Section 316(b) of the Clean Water Act, 33 U.S.C.

§ 1326(b).

SUMMARY OF ARGUMENT

EPA cannot accurately quantify the benefit of

minimizing the environmental impacts of once-

‘ Pursuant to S. Ct. R. 37.3(a) and 37.6, the undersigned

represents that (1) all parties consented to the filing of this

brief, (2) no counsel fur any party authored this brief in whole or

part, and (3) no person or entity other than the above-named

amici curiae and their counsel made a monetary contribution to

the preparation or submission of thts brief.

through cooling water systems on aquatic ecosystems

because of the uncertainty inherent in measuring

those impacts. Agencies using cost-benefit analysis

in this context will inevitably fail to properly consider

the loss of ecological integrity and other important

values. Amici National Wildlife Federation et al.

offer a summary of the ecological impacts of cooling

water intake structures to illustrate why it was a

sensible policy choice for Congress to require power

plants to install the best technology available to

minimize these impacts, independent of any cost-

benefit analysis.

Power plants using once-through cooling water

systems draw extremely large volumes of water into

their cooling water systems and, in the process,

destroy innumerable numbers of fish, shellfish, and

other aquatic or water-dependent organisms. All of

these organisms, whether a highly sought-after com-

mercially valuable fish or a “lowly” worm, play an

important ecological role in the rivers, lakes, bays

and estuaries from which they are removed. These

waters are already stressed by pollution and other

human activities and so the significant loss of aquatic

life can have far-reaching impacts not readily meas-

ured, including fundamental shifts in ecosystem

structure and function.

Congress established the “best technology available

for minimizing adverse environmental impacts” (BTA)

standard precisely because of the difficulty of deter-

mining the full benefits of restoring water bodies

impacted by cooling water systems. The use of cost-

benefit analysis is wholly inconsistent with “minimiz-

ing” environmental effects and does not allow for the

proper consideration of the values underlying the

Clean Water Act’s objective to restore and maintain

aquatic ecosystems. Congress’ use of a technology-

forcing standard in Section 316(b) is therefore a

rational policy choice.

ARGUMENT

I. Once-through Cooling Water Systems

Cause Serious Harm to the Ecological

Integrity of Our Nation’s Waters

The Second Circuit correctly concluded that the

ecological impacts of cooling water intake structures

through entrainment and impingement are “stag-

gering.” Riverkeeper, Inc. v. U.S. Environmental

Protection Agency, 358 F.3d 174, 181 (2d Cir. 2004).

The volume of water used for cooling water at power

plants is vast. The United States Geological Survey

(USGS) has estimated the total quantity of water

withdrawn for electric power in the year 2000 to be

195 billion gallons per day.* Of all the various sources

that withdraw water from our nation’s waters, ther-

moelectric power withdrawals accounted for over fifty

percent of fresh surface-water withdrawals and over

ninety percent of saltwater surface water with-

drawals.’

The direct impacts of the once-through cooling

water systems include the death of over three billion

fish and shellfish per year’ and the removal of

“Hutson, et al., Estimated Use of Water in the United States

in. 2000, USGS Circular 1268 (released March 2004, revised

April 2004, May 2004, February 2005) (Available at http://water.

usgs.gov/watuse/).

"Td.

‘This number is expressed as an “age 1 equivalent” which is

the method EPA used in its analysis for establishing an “apples

to apples” comparison of the losses of fish at all stages from eggs

and larvae to fish older than one year old. U.S. Environmental

innumerable fish eggs, larvae, plankton, and inverte-

brates.” The removal of this many living organisms

from aquatic ecosystems has other impacts more

difficult to quantify. The killing and harming of so

many organisms leads to a shift in the structure and

health of the ecosystem including a change in the

balance of species which would normally be present.

Added to the other stresses on aquatic ecosystems

from human activities, the use of once-through cool-

ing water technologies has major impacts on the

ecological integrity of our nation’s waters.”

Petitioners and their amici argue that these im-

pacts from operating once-through cooling water

systems are not significant or may actually be

beneficial.’ Their argument includes the assertion

Protection Agency, Regional Studies for the Final Section 316(b)

Phase II Existing Facilities Rule, (February 2004) A5-4.1

(Available at http://www.epa.gov/waterscience/3 16b/phase2/case

study/final/cha5. pdf) [hereinafter Regional Studies).

° U.S. Environmental Protection Agency, Economic and Bene-

fits Analysis for the Final Section 316(b) Phase II Existing

Facilities Rule, at Table C2-1 (February 2004) (Available at:

http://www.epa.gov/waterscience/3 16b/phase2/econbenefits/final.

htm) [hereinafter Economic and Benefits Analysis}.

* These impacts are discussed in more detail infra. Excellent

summaries of the environmental effects of cooling waver systems

in the context of Section 316(b) can also be found in two articles:

May and van Rossum, The Quick and the Dead: Fish Entrain-

ment, Entrapment, and the Implementation and Application of

Section 316(b) of the Ciean Water Act, 20 Vt. L. Rev. 373, 378-

385 (1995); and Super and Gordon, Minimizing Adverse Envi-

ronmental Impact: How Murky the Waters, in Dixon, et al.,

DEFINING AND ASSESSING ADVERSE ENVIRONMENTAL IMPACT

FROM POWER PLANT IMPINGEMENT AND ENTRAINMENT OF

AQUATIC ORGANISMS, (2003) at 213-230.

Petitioners argue, for instance, that once-through cooling

systems are a better choice than alternatives which impose an

that the organisms that die from impingement and

entrainment would die anyway, or that the organ-

isms that die are merely surplus.” Petitioners even

suggest that their cooling water systems are benefi-

cial because they remove nuisance species.’ These

arguments fail not just because they lack scientific

support, but also because they rely on an overly

narrow view of the importance of the organisms

killed, a perspective that ignores the interconnected-

ness of life in aquatic ecosystems.

“energy penalty” on power plants. In this brief, since this case

involves application of the Clean Water Act, we have only

considered the impacts of once-through cooling water systems

on aquatic ecosystems as the relevant “adverse environmental

impact.” Petitioners’ attempts to broaden the relevant inquiry

by asserting that requiring power plants to replace once-

through with closed-cycle cooling water systems would increase

carbon dioxide emissions presents an interesting but fundamen-

tally flawed argument. Petitioners’ argument rests on the

shaky assumption that the extra power required to run a closed-

cycle cooling system would have to be replaced, and that the

replacement energy would have to come from carbon-dioxide

emitting power plants. This self-serving assumption conven-

iently ignores the likelihood that the additional cost associated

with reducing the impacts of impingement and entrainment

would drive reduced consumption, increased efficiency, and

more reliance on renewable sources of electricity.

* Brief of Petitioners Entergy Corp, PSEG Fossil LLC and

PSEG Nuclear LLC at 49-51, Entergy Corp. v. EPA, et al.

(July 14, 2008). . See also Brief of Petitioner Utility Water Act

Group at 8-9, Entergy Corp. v. EPA, et al. (July 14, 2008).

* Brief of Petitioners Entergy Corp, et al. supra note 8, at 23.

See also Brief of Petitioner Utility Water Act Group, supra note

8, at 10.

A. The Harm to Aquatic Ecosystems from

Once-through Cooling Water Systems

is Significant and Complex

1. Impingement and Entrainment by

Once-through Cooling Water Sys-

tems Kills or Injures Large Num-

bers of Many Different Water-

Dependent Species

Power plants kill or harm a broad array of organ-

isms in their cooling water intake structures in two

primary ways, through “impingement” and “entrain-

ment.” The term “impingement” refers to a circum-

stance in which the fish or other organism, larger

than the apertures in the screen used to keep debris

out of the cooling water system, is trapped against

the screen by the pressure of the water flowing

through the structure such that it suffers physical

harm or is killed."' Impinged fish may suffocate if

they cannot pass water over their gills due to high

water pressure.” Also, contact with the cooling

system equipment can abrade the scales and skin of

the fish increasing their susceptibility to infection

and osmotic stress."

° Economic and Benefits Analysis, supra note 5 at A2-4.

Id.

* U.S. Environmental Protection Agency, Regional Analysis

Document for the Final Section 316(b) Phase II Existing

Facilities Rule A2-9 (February 12, 2004) (Available at

http://www.epa.gov/waterscience/3 16b/phase2/casestudy/final.ht

m) {hereinafter Regional Analysis}.

" Id. at A2-8 (“Osmotic stress” refers to the potential for

freshwater fish to suffer from excessive water uptake and

salcwater fish to lose water.).

The term “entrainment” refers to those organisms

which are not caught in the screen but instead are

sucked into the cooling water system and exposed to

the full range of insults that occur within that system

ranging from physical harm from being battered by

the turbulence, to exposure to chemicals used for

cleaning the system, to abrupt temperature fluctua-

tions." Once entrained, the organisms are subjected

to “mechanical and hydraulic shocks (e.g. pressure

changes, abrasion of particles, impacts against pip-

ing, and turbulence), thermal stresses, and chemical

toxicity (e.g. chlorination of cooling water).””

Physical stresses, such as pressure changes from

turbulence and acceleration, and physical abrasion

are continuous whenever water is being pumped.”

The air or swim bladder of larval fish are damaged

when they undergo rapid pressure changes within

the cooling system.’ Abrupt thermal shocks “may

disturb the normal processes in the development of

early life stages of aquatic organisms, or result in

death of either young or adults.”“ Chlorine (and

other biocides) added to cooling water systems “seri-

ously affects the growth and survival of entrained

organisms” with “substantial damage to entrained

plankton” even at very low chlorine dosages.””

“ Economics and Benefits Analysis, supra note 5 at A2-4.

"Id. at A2-4,5.

Schubel, et. al., Power Plant Entrainment, 137-8 (1978).

Regional Analysis, supra note 12, at A2-9.

“ Schubel, supra note 16, at 22, citing O. Kinne, Temperature,

in MARINE ECOLOGY 321-616 (1970).

Plankton are generally defined as “floating organisms whose

movements are more or less dependent on currents.” Odum et.

al., Fundamentals of Ecology, 161 (1971).

These stresses impact fish, eggs and larvae with

large percentages of mortalities from physical harm

alone.” Mortality of zooplankton” is also signifi-

cant.” Most of these organisms die as a result of

being entrained, or are so badly injured that they are

susceptible to predation or cannot recover.”

Finally, all of these impacts are synergistic.” A

leading scientist in this area notes that the “three

classes of stresses [thermal, chemical and physical]

frequently act in combination,” particularly during

the warmer months.” These various stresses either

kill the entrained organisms or sufficiently weaken

them that they die after being discharged or become

easy prey. For this reason, most scientists and EPA

have concluded that it is safest to assume that the

* Morgan et. al., Biocides, in POowkeR PLANT ENTRAINMENT

123-4 (J.R. Schubel & Barton C. Marcy, Jr. eds., 1978).

** Schubel, supra note 16, at 142.

* Plankton can generally be divided into plant and animal

subgreups. Phytoplankton are the plant-like subgroup, includ-

ing organisms like algae. Zooplankton are the animal-like sub-

group which grazes on phytoplankton or preys on smaller plank-

ton and which also serves as food for higher level organisms.

Odum, supra note 19, at 300-330. Icthyoplankton are the egg

and larval stages of fish when they are drifting in the water

column. Regional Analysis, supra note 12, at A3-2.

™ Schubel, supra note 16, at 143-50.

“O'Connor et. al., The effects of power plants on productivity

of the nekton, in Estuarine Research, Vol. 1: Chemistry, Biology

and the Estuarine Ecosystem (L.E. Croin, ed., 1975). See also

Schubel, supra note 16, at 137.

” Schubel, supra note 16, at 137.

“Id. at 231.

cooling water systems kill one hundred percent of the

organisms which are entrained.”

The fish mortality rates associated with “impinge-

ment” and “entrainment” can be extremely large.” A

significant number of fish mortality studies show

losses from individual power plants of millions of

fish per year.” For example, at a power plant in

Galveston, Texas, over seven million fish were

impinged in year,” at a plant in Connecticut, fish

mortality included the loss of over two million indi-

viduals in just a period of a few months,” and over a

ten week period, over one million fish were killed by

the cooling water intake structure of a power plant on

the Hudson River.”

Macroinvertabrates and crustaceans such as crabs,

lobsters and shrimp also become impinged or en-

trained. The losses of smaller organisms, in terms of

the numbers of individuals harmed or killed, are even

* National Pollutant Discharge Elimination System— Final

Regulations to Establish Requirements for Cooling Water Intake

Structures at Phase II Existing Facilities 69 Fed. Reg. 4° 576,

41,620 (July 9, 2004). Pet. App. 322a. (“EPA believes the current

state of knowledge does not support reliable predictions of

entrainment survival that would provide a defensible estimate

for entrainment survival above zero at a national level.”).

™ See Laws, Aquatic Pollution, 353-356 (3rd ed. 2000), Tables

11.3 and 11.4 (summarizing data from numerous studies

regarding fish loss due to impingement and entrainment).

™Id. See also Hall, et al., Environmental Impacts of Indus-

trial Energy Systems in the Coastal Zone, Annual Review of

Energy, 395, (November 1978) ; Clark, et. al., Electric power

planis in the Coastal Zone (1973).

"Id.

* Id.

” Id.

greater than adult fish losses. A broad array of

planktonic organisms, including algaes, zooplankton,

and fish eggs and larvae which are suspended in the

water column are entrained into once-through cooling

water systems.” These organisms, while they may

have some limited mobility, are largely powerless to

escape the suction from cooling water intake struc-

tures." Estimated losses for large power plants

drawing their cooling water from estuaries can

exceed one billion organisms per year.”

It is not just fish, crustaceans and planktonic

organisms which are affected by impingement and

entrainment, but also birds, sea turtles and marine

mammals.” EPA has noted that “[m]any other kind

of aquatic organisms are vulnerable to impingement

and entrainment, either during early development or

throughout their life cycle,”” including sea turtles,

seals and diving birds which can die if drawn into

intake structures or impinged on intake screens.”

“U.S. Environmental Protection Agency, Case Study Analy-

sts for the proposed Section 316(b) Phase II Existing Factlities

itule A3-2 (February 28, 2002) (Available at http://www.epa.gov/

waterscience/3 16b/phase2/casestudy/) {hereinafter Case Study

Analysis}.

“Id. at A8-1.

* Kennish, Practical Handbook of Estuarine and Marine

Pollution. 484 (1996).

“ Economics and Benefits Analysis, supra note 5, at B6-5.

" Case Study Analysis, supra note 33, at A3-4.

® Regional Analysis, supra note 12, at A3-3, and A4-1,2.

2. Killing or Injuring Large Numbers

of Water-Dependent Species Causes

Far Reaching Damage to _ the

Ecological Integrity of Our Nation’s

Waters

Collectively, these direct losses of fish and other

organisms are by themselves dramatic. The full

implications of these direct losses, however, go well

beyond the loss of the individual organisms. Simple

population studies and analysis are insufficient to

judge the full significance of the ecological harm from

impingement and entrainment. As EPA has noted,

“[tlo fully appreciate the harm of once-through cool-

ing water systems requires looking at the nature,

structure and function of the ecosystem.”” EPA

summarizes the array of potential ecological impacts

from cooling water intake structures, citing to well-

accepted scientific literature:

In addition to their importance in providing food

and other goods of direct use to humans, the

organisms lost to [impingement and entrain-

ment] are critical to the continued functioning of

the ecosystems of which they are a part. Fish

are essential for energy transfer in aquatic food

webs, regulation of food web structure, nutrient

cycling, maintenance of sediment processes,

redistribution of bottom substrates, the regula-

tion of carbon fluxes from water to the

atmosphere, and the maintenance of aquatic

biodiversity (Petersen and Lubchenco, 1997:

* National Pollutant Discharge Elimination System: Regula

tions Addressing Cooling Water Intake Structures for New

Facilities, 66 Fed. Reg. 65,256, 65,292-3. (Dec. 18, 2001).

Postel and Carpenter, 1997; Holmund and

Hammer, 1999; Wilson and Carpenter, 1999).

A proper understanding of the impacts of impinge-

ment and entrainment at cooling water intake

structures thus requires an appreciation of the

complexity of aquatic ecosystems.

As a first step in understanding this complexity, it

is important to appreciate the duality of every fish’s

role in the ecosystem: fish that are killed are not

only not available as food, to people, marine

mammals, birds and other fish, but are also not

available to fill their own predatory role in eating

other organisms. The loss of entrained organisms is

a double-loss to the ecosystem since we lose both “the

reproductive phases of higher forms and a loss of food

organisms.”" As noted above, the impacts of cooling

water intake structures are not limited to adult fish

but reach to all life stages including eggs, larvae and

young fish. Similarly, when planktonic organisms

are lost to the ecosystem, they cannot serve their

function at the base of the food chain.”

Petitioners and their amici ask this Court to ignore

this broad, ecological understanding of the impacts

and invite instead a narrow focus, suggesting that

Regional Analysis, supra note 12, at F5-2.

“ Schubel, supra note 16, at 14, citing Beck, et al., Analysis of

Inner Plant Passage of Estuarine Biota, American Civil Engi-

neering, 199-226 (1974).

“ National Pollutant Discharge Elimination System - Pro-

posed Regulations to Establish Requirements for Covling Water

Intake Structures at Phase II Existing Facilities 67 Fed. Reg.

17,122, 17,136 (April 9, 2002); see also National Pollutant Dis-

charge Elimination System: Regulations Addressing Cooling

Water Intake Structures for New Facilities 66 Fed. Reg. 65,256,

65,263 (Dec. 18, 2001).

the death of these organisms is unimportant since

most would have died anyway.” Such a narrow view

ignores the fact that the organisms which are im-

pinged or entrained would have served a variety of

ecological functions. The loss of this array of organ-

isms and life stages has a ripple effect across the

ecosystem and can lead to imbalances including,

contrary to the suggestion of petitioners, the prolif-

eration of nuisance species.“

EPA has noted that “{iJn addition to the harm that

results from the direct removal of organisms by

impingement and entrainment, there are the indirect

effects on aquatic food webs that result from the

impingement and entrainment of organisms that

serve as prey for predator species.”” As one example

“ Brief of Petitioners Entergy Corp, et al., supra note &, at 49-

51.

“ National Pollutant Discharge Blimination System—Regula-

tions Addressing Cooling Water Intake Structures for New

Facilities 65 Ped. Reg. 49,060, 49,075 (August 10, 2000).

(“[Harmful environmental) effects could have the potential to

reduce the population of indigenous species; change the species

mix because some species are more susceptible to impingement

and entrainment than others; might increase nuisance species;

harm and kill endangered and threatened species; damage

critical aquatic organisms, including important elements of the

food chain; and reduce commercial and sport fisheries.”) citing

NYDEC, Clean Water Act Section 316(b), statement provided to

U.S. EPA at public meeting to discuss adverse environmental

impacts resulting from cooling water intake structures, New

York State Department of Environmental Conservation, Divi-

sion of Fish, Wildlife, and Marine Resources, June 29, 1998.

“ Economics and Benefits Analysis, supra note 5, at BG-5, see

alsu Regional Analysis, supra note 12, at A3-4, (“[mJjost aquatic

vrganisms are also susceptible to indirect impacts as a result of

the impingement or entrainment of prey items. Unfortunately,

of how far up the food chain the impacts can extend,

EPA has noted that studies show indirect harm to

certain bird species as a result of losses of fish and

shellfish to impingement and entrainment, organ-

isms that would otherwise be available as a food

source.“ EPA states that “|tjhe impacts of {impinge-

ment and entrainment] on bird populations, though

subtle cannot be discounted. Many do not realize

their full reproductive potential because of loss of

food resource.””’ Disruption of the food chain is, how-

ever, only one facet of the impacts of once-through

cooling water systems.

The full range of public and ecological services

provided by healthy water bodies is quite broad“ and

few studies consider how |cooling water intake structures} im-

pact may disrupt aquatic food webs.”).

* Regional Analysis, supra note 12, at A4-1,2.

“Id. at A4-10.

“EPA provides the following examples of ecological and

public services disrupted by impingement and entrainment:

¢ decreased numbers of ecological keystone, rare, or sensi-

tive species;

¢ decreased numbers of popular species that are not

fished, perhaps because the fishery is closed;

¢ decreased numbers of special status (e.g., threatened or

endangered) species;

* increased numbers of exotic or disruptive species that

compete well in the absence of species lost to impinge-

ment and entrainment;

¢ disruption of ecological niches and ecological strategies

used by aquatic species;

* disruption of organic carbon and nutrient transfer

through the food web,

¢ disruption of energy transfer through the food web;

—

“many of these services can only be maintained by

the continued presence of all life stages of fish and

other aquatic species in their natural habitats.””

Creating a substantial risk to these ecological ser-

vices, power plant once-through cooling water sys-

tems kill disproportionate amounts of organisms in

the early stages of their lives when they are most

vulnerable, and also harm some species more than

others. For instance, some saltwater fish are more

likely to be harmed by cooling water intake struc-

tures,” and anadromous” fish may be particularly

vulnerable when transitioning between their fresh-

water and saltwater phases.” Power plants are

“selective predators that may not only reduce the

abundance of vulnerable orge aisms but which may

also disrupt community structure through selective

cropping and concomitant enhancement of surviving

e decreased local biodiversity;

¢ disruption of predator-prey relationships;

¢ disruption of age class structures of species;

¢ disruption of natural succession processes;

¢ disruption of public uses other than fishing, such as

diving, boating, and nature viewing; and

¢ disruption of public satisfaction with a healthy

ecosystem.

Id. at A9-1.

a Id

® Versar, Vulnerability of Biota of Freshwater (Rivers, Lakes,

Reseviors) versus Marine (Tidai River, Estuary, Ocean) Habitats

to Entrainment and Impingement, (April 2002).

*“Anadromous fish live in the sea and migrate to fresh water

to breed.” Encyclopedia Britannica Online at http://www.brit

annica.com/ EBchecked/topic/22290/anadromous-fish.

“ Case Study Analysis, supra note 33, at A2-9.

species.”” The effects of impingement and entrain-

ment thus include “changes to the community struc-

ture through changes in diversity caused by

elimination of less tolerant species and life stages,

and size selectivity.”™

Appreciating the effects of selective “predation” by

power plants is critical te understanding their full

impact on aquatic ecosystems. The impact goes far

beyond the direct mortality of large fish and includes

the much broader and more difficult to assess effects

of selectively removing a large component of living

organisms from rivers, lakes, estuaries and oceans.

Ultimately, the use of once-through cooling water

systems leads to exactly the problem that Congress

sought to address — a shift in the nature, structure

and function of aquatic ecosystems which interferes

with the recovery of the ecological integrity of our

nation’s waters.

B. The Cumulative Impacts of Once-

through Cooling Systems Combined

with Other Anthropogenic Damage

Impedes Restoration of the Ecological

Integrity of Our Nation’s Waters

1. Once-through Cooling Water Sys-

tems Impact Aquatic Ecosystems

Already Stressed from Other

Human Activities

The harms from impingement and entrainment at

cooling water intake structures for once-through sys-

“ Schubel, supra note 16, at 230. Contrary to Petitioners

suggestion, there is no evidence that this selective cropping and

enhancement preferentially removes invasive or nuisance species.

See Brief of Petitioners Entergy Corp, et al, supra note 8, at 23.

See also Brief of Petitioner Utility Water Act Group, supra note

8, at 10.

“ Schubel, supra note 16, at 151-2.

tems do not occur in pristine waters but are instead

taking place in aquatic ecosystems already struggling

to maintain equilibrium. For this reason, the im-

pacts of cooling water intake structures must be

understood within the larger context of other envi-

ronmental stressors including “alterations in physical

habitat, modifications in the seasonal flow of water,

changes in the food base of the system, changes in

interactions within the stream biota, and release of

contaminants (conventional pollutants).””

The Clean Water Act represents an effort to deal

with all of these various stressors in a comprehensive

manner. Congress included provisions in the Act to

address a broad array of impacts on water quality.

City of Milwaukee v. Illinois and Michigan, 451 U.S.

304, 318 (1981)(“Congress' intent in enacting the

Amendments was clearly to establish an all-encom-

passing program of water pollution regulation.”). The

goals and structure of the Act make clear that

Congress did not contemplate a regulatory program

which involved marginal analyses of discrete harms

considered independently of all other impacts. To the

contrary, the broad objective of this legislation, “to

restore and maintain the biological, chemical and

physical integrity of the Nation’s waters,” 33 U.S.C.

* National Academies of Science, Assessing the TMDL Ap-

proach to Water Quality Management, Commission on Geo-

sciences, Environment and Resources 28-29 (2001) (discussing

categories of environmental stressors on waterbodies from

human activities) (Available at http://www.nap.edu/openbook.

php?record_id=10146&page=R1) citing J. R. Karr, Bivassess-

ment and Non-Point Source Pollution: An Overview 4-(1-18)

(1990). See also National Research Council, Restoration of

Aquatic Ecosystems (1992) 1-3 (Available at http://www.nap.edu/

catalog.php?record_id=1807#toc).

§ 1251(a), reflects a desire to address all impacts on

aquatic ecosystems.

EPA must, therefore, consider the overall health of

our Nation’s waters when determining the “best tech-

nology available for minimizing adverse environ-

mental impacts.” While it is truc that there have

been notable improvements in water quality in the

decades following the implementation of the Clean

Water Act,” our lakes, rivers, bays and estuaries are

far from being restored. Across the nation, the states

have reported significant numbers of waterbodies not

meeting water quality standards.” Of particular

relevance to this case, EPA has surveyed existing

facilities with cooling water intake structures and

found that ninety-nine percent of those surveyed

were within two miles of waters nc meeting water

quality standards.”

The failure to achieve standards and the accom-

panying harms to aquatic ecosystems are due to a

range of causes including erosion, mining runoff, acid

rain, uncontrolled stormwater runoff, improperly

managed agricultural waste, acid rain, excessive

water withdrawals for irrigation, municipal sewage,

* Smith et. al., Water Quality Trends in the Nation’s Rivers,

Science, March 1987, 1607 (Avarladile at http://www sciencemag.

org/cgi/content/abstract/235/4796/ 1607 ?ijkey =75af0 2e96c5a 7dad

edbf7eca3e340b4117cc86ce8& keytype2=tf_ipsecsha).

“ US. Environmental Protection Agency, National Water

Quality Inventory: Report to Congress, 2002 Reporting Cycle

(October 2007) (Available at http://www.epa.gov/305b/2002

report/).

“ National Pollutant Discharge Elimination System - Pro-

posed Regulations to Establish Requirements for Cooling Water

Intake Structures at Phase Il Existing Facilities 66 Fed. Reg.

65,256, 65,263 (Dec. 18, 2001).

industrial discharges, removal of riparian vegetation,

and filling of wetlands.” Thermal discharges from

power plants add to the ecosystem damage from

these activities.” Federal agency reports by EPA and

the United States Geologic Survey (“USGS”), and

National Academies of Sciences document that water

contamination from many varied pollutants is wide-

spread® and includes pesticides, nutrients, salinity,

acid deposition, sediment, and metals.” Saltwater

ecosystems are not immune from this pollution.”

Our nation’s waters have also been filled, diverted,

dammed, diked, and channelized. As a result, impor-

* Id.

“ Laws, supra note 28 at 335 (3rd ed. 2000), (“Electric power

plants account for 75-80% of the thermal pollution in the United

States.”).

“ Hamilton, et al., Water Quality in the Nation’s Streams and

Aquifers, Overview of Selected findings 1991-2001, USGS Sur-

vey, Circular 1265 2 (2004) (Available at http://pubs.usgs.gov/

cire/2004/1265/pdf/circular 1265. pdf).

“Id. See aiso U.S. Environmental Protection Agency,

Wadeable Streams Assessment: A Collaborative Survey of the

Nation’s Streams (December 2006) (Available at http://www.epa.

gov/owow/streamsurvey/); U.S. Environmental Protection Agency,

National Estuary Program Coastal Condition Report (June

2007) (Availadle at http//www.epa.gov/owow/oceans/nepcecr/

index html); National Academies of Science, Clean Coastal

Waters: Understanding and Reducing the Effects of Nutrient

Pollution (2002) (Available at http://books nap.edu/catalog php?

record_id=9812#toc).

“U.S. Commission on Ocean Policy, An Ocean Blueprint for

the 2ist Century Final Report, 163-84 (2004) (Available at

http://oceancom mission gov/documents’full_color_rpt/welcome.ht

ml#full).

tant aquatic habitat has been lost, seasonal flows

have been disrupted and fish passage blocked.”

As if that were not enough, the species native to

our lakes, rivers, bays and estuaries are being out-

competed by the introduction of non-native species

such as the zebra mussel in the Great Lakes,” and

the snake-head fish in Maryland” — just two of the

more notorious invasive specics impacting our waters.

In another, more systemic analysis, scientists study-

ing the Columbia River Basin have determined that

the impacts of non-native species are equivalent to

other major impacts such as “habitat loss and deg-

radation, climate change, and human population

growth and development.”” The U.S. Commission on

Ocean Policy calls invasive species “one of the

greatest threats to coastal environments.”™

“U.S. Fish and Wildlife Service, Fish Passage Program,

Overview (Available ai http//www.fws.gov/fisheries/FWMA/fish

passage/Overview htm); see also Collier, M., R.H. Webb and J.C.

Schmidt, U.S. Geological Survey, Dams and Rivers: Primer on

the Downstream Effects of Dams, (1996) (Available at http://

pubs.er.usgs.gov/pubs/cir/cir 1126).

Ecological Problems in the Great Lakes (2007) (Available at

http://www .gisc.usgs.gov/main. php?content=research_invasive_z

ebramussel&title=[nvasive%20I nvertebratesO0& menu=research _

invasive_invertebrates).

“ Snakehead Scientific Advisory Panel, First Report to the

Maryland Secretary of Natural Resources (July 2002) (Available

at http://www dnr state.md_us/ire/ssap_report html).

* Independent Scientific Advisory Board, Non-Native Species

impacts on Native Saimonids in the Columbia River Basin (July

2008) (Available at http://www.nweouncil.org/library/isab/isab

2008-4. htm).

“U.S. Commission on Ocean Policy, An Ocean Blueprint for

the 2ist Century Final Report 252-62 (2004) (Availadile at

The overharvesting of fish and shellfish presents a

direct threat to the recovery of some commercially

valuable or recreationally desirable species, both

freshwater and saltwater. Marine fisheries in par-

ticular have suffered from overexploitation over the

past thirty years with negative consequences for

many fishing communities and ecosystems.” Fur-

ther, as EPA notes, “because modern ecological

studies do not typically consider the long-term his-

torical record, existing fishery resource baselines may

be inaccurate, and ‘Even seemingly gloomy estimates

of the global percentage of fish stocks that are

overfished are almost certainly far too low.””

Finally, global warming is adding to the stress on

aquatic ecosystems. The Intergovernmental Panel on

Climate Change has determined that rising water

temperatures associated with global warming affect

algal, plankton and fish abundance.’ This conclusion

is supported by the findings of the Food and

Agriculture Organization of the United Nations

http://oceancommission gov/documents/full_color_rpt/welcome.ht

ml #full).

” Id. at 274-303, See also National Research Council, Com-

mittee on Ecosystem Management for Sustainable Marine Fish-

eries, Ocean Studies Board, Sustaining Marine Fisheries 19

(1999).

” National Pollutant Discharge Elimination System: Regula-

tions Addressing Cooling Water Intake Structures for New

Facilities, 66 Fed. Reg. 65,256, 65,293 (Dec. 18, 2001), citing

J.B.C. Jackson, et al., Historical overfishing and the recent

collapse of coastal ecosystems, Science 293 (2001).

“ Intergovernmental Panel on Climate Change, Climate

Change 2007: Synthesis Report 33 (2007) (Available at http://

www ipec ch/pdf/assessment-report/ard/syr/ar4_syr pdf) (empha-

sis in original).

which recently determined that global warming will

have a strong impact on fisheries.”

The fact that many aquatic ecosystems across the

country are in decline or at risk of disruption due to

other stressors makes it all the more important to

prevent the harms associated with impingement and

entrainment. 1

2. Aquatic Ecosystems Do Not Carry

a Fish “Surplus” Available for

Destruction by Once-Through Cool-

ing Water Systems

Fish have evolved strategies to survive natural

fluctuations in environmental conditions. A piimary

strategy for many fish species is to produce many

more offspring than are needed to maintain a stable

population. This long-term production and high

fecundity allow any given fish species to survive

seasons in which the species is afflicted with natural

stressors such as heavy predation, extreme weather,

or major geological disruptions.” Further, there is

evidence that fish species respond to population

losses through increases in rates of reproduction.”

“ Food and Agricultural Organization of the United States,

Climate Change will have Strong Impact on Fisheries: Decrease

in Fisheries Production Likely - FAO Holds Scientific Sympo-

stum (July 2008) (Avarlable at http://www.fao.org/newsroom/

en/news/2008/1000876/index html).

“ Boreman, Surplus Production, Compensation, and Impact

Assessments of Power Plants, Environmental Science & Policy

31 2000, at 445-6, cited in Super and Gordon, supra note 5,

at223. See also National Pollutant Discharge Elimination

System: Regulations Addressing Cooling Water Intake Struc-

tures for New Facilities, 66 Fed. Reg. 65,256, 65,291-4 (Dec. 18,

2001).

“Td. at 446.

This phenomenon, referred to as “compensation,” is

offered by the Petitioners as support for the con-

clusion that killing the “surplus” fish through

impingement and entrainment has only a minor

impact on fish populations.” This conclusion ignores

the fact that the reproductive strategies of fish

evolved in response to variations in natural condi-

tions and that any “surplus” in fish populations may

already be needed as insurance against other stress-

ors.” Fish populations are at greater risk from

natural disturbances that the species might other-

wise tolerate as a result of non-natural, anthro-

pogenic impacts.” Adding the additional impact

associated with impingement and entrainment from

once-through cooling systems can only add to the ris «

that the impacts collectively will exceed the ability o°

fish populations to rebound.

” Brief of Petitioners Entergy Corp, et al., supra note 8, at 49-

50. See also Brief of Petitioner Utility Water Act Group, supra

note 8, at 8-9.

” Boreman, supra note 73 at 447. (“What constitutes a sur-

plus in reproductive effort one year may be needed the next

te counteract changes in environmental conditions that affect

cohort survival.”).

" National Pollutant Discharge Elimination System: Regula-

tions Addressing Cooling Water Intake Structures for New

Facilities 66 Fed. Reg. 65,256, 65,294 (Dec. 18, 2001). “|E)ven if

there is little evidence that cooling water intakes alone reduce a

population's compensatory reserve, EPA is concerned that the

multitude of stressors experienced by a species can potentially

adversely affect its ability to recover.”) citing J.A. Hutchings &

R.A. Myers, What can be learned from the collapse of a renew

able resource? Atlantic cod, Gadus morhus, of New Foundland

and Labrador, Canadian Journal of Fisheries and Aquatic

Sciences 51, 2126-2146 (1994)

In addition, as noted above in Section LA.2, the

fish and other organisms removed by cooling water

intake structures are important to the ecosystem,

either as food sources or predators. These indirect

impacts on the ecosystem and fish populations are

ignored by petitioners. Their analytical framework

for determining a hypothetically available “surplus”

is fundamentally flawed because it does not take

account of the predator and prey relationships, or the

many other interconnections, among the organisms

in the impacted water body.

Dr. John Boreman of the National Marine Fisher-

ies Service frames the issue of a “surplus” as being

whether to use such “excess production” for “support-

ing fisheries, for allowing the population to hedge

against bad times, for providing extra sustenance for

natural predators, or for supporting other uses of the

resource?” The answer to this question becomes

especially clear when considering the cumulative

impacts of impingement and entrainment on fish

combined with other anthropogenic harms. Fish

populations and aquatic ecosystems are already at

risk and may not be able to absorb additional losses.

If we hope to restore aquatic ecosystems, as Congress

has directed, we should not allocate natural fish

population buffers to avoidable losses from

impingement and entrainment in once-through

cooling water systems, but should instead take all

available steps to preserve that surplus as a “hedge

against bad times.”

ae |

C. There is Insufficient Information or

Knowledge to Predict the Extent to

Which Once-through Cooling Water

Systems Impact’ the Ecological

Integrity of Our Nation’s Waters

As may be evident from the above discussion, the

full scope of the impacts on aquatic ecosystems from

killing vast numbers of fish, shellfish, crustaceans,

plankton and other organisms cannot be accurately

measured. A group of leading fisheries scientists who

studied the impacts of impingement and entrainment

losses from a proposed power plant noted that,

After more than a decade of study and the

expenditure of tens of millions of dollars, it was

still not possible to draw definitive conclusions

about the long-term effects of entrainment and

impingement on fish populations in the Hudson

River.

These same scientists concluded from their study

that,

The ultimate question “what will be the long-

term effect of once-through cooling on Hudson

River fish populations?” was unanswerable.”

The reason the question was, and continues to be,

unanswerable is that aquatic ecosystems are complex

and hard to study.” Identifying the impacts of

” Barnthouse et al., Population Biology in the Courtroom: the

Hudson River Controversy, (1984), Bioscience, vol. 34, No. 1, at

18.

"Id.

* See e.g. Barnthouse et al., What We Didn’t Learn About the

Hudson River, Why and What it Means for Environmental

Assessment, Am. Fisheries Monograph 4:329-335 (1988) at 331.

human activities on fish populations requires over-

coming an array of challenging issues. These issues

include consideration of factors such as the high

degree of natural variability in fish populations over

time, the variety of habitats that fish species may

use, understanding interactions among the broad

community of organisms impacted, and quantifying

the sublethal, synergistic and cumulative impacts of

anthropogenic harms.”

This conclusion, that predicting fish population re-

sponses to human-induced disturbances is an uncer-

tain business, is not an isolated one nor does EPA

dispute it. Indeed, over the course of developing the

various phases of the 316(b) regulations, EPA has

noted the significant uncertainties inherent in evalu-

ating the impacts of cooling water intake structures

multiple times in multiple contexts.”

The fish population models that petitioners have

urged EPA to accept as part of a cust-benefit analysis

are not sufficient to overcome the inherent uncer-

tainty in predicting the impact of cooling water

systems on aquatic ecosystems.” Major limitations

on the use of mathematical models “include inaccu-

rate estimates of population sizes and the inability to

accurately account for marked fluctuation in repro-

ductive success and survival of organisms from year

“ Rose, Why Are Quantitative Relationships Between Envi-

ronmental Quality and Fish Populations So Elusive?, Ecological

Applications 10 (2000) 367-385 (Available at http://www jstor.

org/stable/2641099).

® Case Study Analysis, supra note 33, at A26. See also Re-

gional Studies, supra note 4, at 11-5.

“ Newbold, et. al., Impacts of cooling water withdrawals on

fish populations at a regional scale, 41 Environmental Science &

Technology 2108, 1209 (2007)

to year.”” Acknowledging this uncertainty in the

preamble to the Phase I regulations, EPA recognized

“that the limitations of existing population models,

including models used to manage fisheries, may be

related to our overall limited understanding of the

complexity of aquatic ecosystems and the long-term

effects of anthropogenic activities.” EPA also cited

the work of a National Marine Fisheries Service

advisory panel which concluded that “[u]ncertainty

and indeterminancy are fundamental characteristics

of the dynamics of complex adaptive systems. Pre-

dicting the behaviors of these systems cannot be done

with absolute certainty, regardless of the amount of

scientific effort invested."”

Given these uncertainties and the challenges of

predicting the impacts of human activities on fisher-

ies and aquatic ecosystems, determining the precise

contribution to fisheries impacts associated with

cooling water intake structures is nearly impossible.

The loss of such significant numbers of organisms can

cause changes that cannot be quantified such as

shifts in the structure of an ecosystem and the resul-

tant change in species diversity.“ When considering

* Kennish, supra note 35 at 484 citing Langford, Blectricity

Generation and Ecology of Natural Waters (1983).

“ National Pollutant Discharge Elimination System: Regula-

tions Addressing Cooling Water Intake Structures for New

Facilities, 66 Fed. Reg. 65,256, 65,293 (Dec. 18, 2001).

* Id. citing National Marine Fisheries Service Ecosystem

Principles Advisory Panel, Ecosystem-based fishery manage-

ment: A Report to Congress 13 (1998) (Available at www.nmfs.

noaa.gov/sfa/EPAPrpt. pdf).

* National Pollutant Discharge Elimination System: Regula-

tions Addressing Cooling Water Intake Structures for New

Facilities 66 Fed. Reg. 65,256, 65,292 (Dec. 18, 2001). (“EPA

determined that there are multiple types of undesirable and

the combination of these impacts from impingement

and entrainment with the host of otlier impacts, it is

a rational policy choice to take all available steps to

minimize human impacts on aquatic ecosystems. In

this case, requiring existing power plants to shift

away from the use of once-through cooling water

systems to other available technologies that are much

less harmful is the obvious policy choice. This is the

policy choice that EPA made in the context of new

power plants” and it is the choice that Congress

intended.

II. Allowing Power Plants to Damage

Aquatic Ecosystems Based On a Cost-

Benefit Analysis is Not Consistent with

the Objective of the Clean Water Act to

Restore and Maintain the Ecological

Integrity of Our Nation’s Waters

A. Section 316(b) Must Be Understood in

the Context of the Objective of the

Clean Water Act to Restore and

Maintain the Ecological Integrity of

the Nation’s Waters

Since the full extent of harms caused by once-

through cooling water systems is potentially massive

and difficult to quantify, and because of the socictal

importance placed on the ecological health of our

nation’s fisheries, Congress made a logical decision to

“(minimize] adverse environmental harm” through

requiring the “best technology available” and not

unacceptable adverse environmental impacts, including .

stresses to overall communities or ecosystems as evidenced by

reductions in diversity or other changes in system structure or

function.”).

” Id. at 65,293.

through a cost-benefit analysis. This approach is

consistent with the overriding policy objective of the

Clean Water Act that we not just “maintain” but

“restore” the “biological, chemical and physical integ-

rity” of our waters, an objective which reflects “a

comprehensive legislative attempt ‘to restore’ the

waters’ ecological integrity.” U.S. v. Riverside Bay-

view Homes, 474 U.S. 121, 132-33 (1985). The

approach in Section 316(b) is also consistent with this

Court’s determination that the Clean Water Act

should be broadly construed to protect fish habitat.

PUD No. 1 of Jefferson County v. Washington Dept. of

Ecology, 511 U.S. 700, 714, 719 (1994) (Holding that,

under the Clean Water Act, a state could require

minimum stream flows to protect fish habitat based

on the Act’s “broad conception of pollution-one which

expressly evinces Congress’ concern with the physical

and biological integrity of water”).

EPA’s Phase II regulations are not, however, con-

sistent with Section 316(b), or the goals and objec-

tives of the Act. These regulations will result in a

degree of protection no more stringent than can be

proven to lead to a quantifiable benefit. Restoration

of the Nation’s waterways is not possible if, at the

same time we are developing strategies to address a

broad range of water pollution, power plants using

once-through cooling systems are allowed to disrupt

the aquatic ecosystems we are trying to recover.

Interpreting the Clean Water Act to allow EPA to

balance the multitude of complex direct and indirect

impacts of once-through cooling water systems

against the cost of installing available technology is

inconsistent with this important objective. Given the

uncertainty associated with measuring ecological harm

from cooling water intake structures, authorizing

EPA to go no further than it can prove is economi-

cally justifiable through a cost-benefit analysis, shifts

the allocation of risk to the environment in a manner

flatly inconsistent with Congress’ goal to restore

aquatic ecosystems.

B. Congress’ Choice to Impose Stringent

Technology-Based Controls on Power

Plant Cooling Water Intake Structures

was Necessary given their Uncertain

Yet Potentially Major Impacts on

Aquatic Ecosystems

The language of Section 316(b) makes clear that

EPA is not allowed to balance cests against benefits

when determining BTA. This point is underscored

when reading Section 316(b) in context, as a provi-

sion of a law in which Congress chose to use a

technology-forcing approach to addressing water pol-

lution. Respondent Riverkeeper’s brief provides a

thorough analysis of the language of the statute at

pages 22 through 23. This analysis suffices to

answer the question presented and we will not repeat

it here. It is, however, worth pondering why Con-

gress required EPA to minimize “adverse environ-

mental impacts” through the use of the “best

technology available.” 33 U.S.C. § 1326(b).

The mostly likely answer can be found by reference

to the body of science, discussed above, demonstrat-

ing the complexity and magnitude of the ecological

impacts from cooling water intake on water bodies.

Once one understands that the harms caused to

aquatic ecosystems by the large volumes of water

intake resulting from once-through cooling water sys-

tems are at once both massive and extremely difficult

to accurately quantify, it becomes clear that the only

practical way to minimize that harm is to take all

available actions to avoid it in the first place. The

potential damage to aquatic ecosystems from once-

through cooling water systems was well-known at the

time that the Clean Water Act was enacted. Many of

the studies demonstrating the massive impacts to

fisheries from cooling water intake structures were

reported in the early 1970's at the same time that the

debate in Congress over the Clean Water Act was

taking place.”

In addition, technologies were available in the

early 1970s and are now even more clearly available

to dram xtically reduce the risks of harm to fisheries

from impingement and entrainment. Low-water in-

take systems are in use at a significant number of

power plants. As noted in a recent USGS Report,

“{[s]lince the 1970’s power plants increasingly were

built with or converted to close-loop cooling systems

or air-cooled systems instead of using once-through

cooling system. By 2000, an alternative to once-

through cooling was used in about 60 percent of the

installed steam-generation capacity in the power

plants.”” Use of alternative cooling water systems is

thus available to minimize environmental impacts by

” U.S. Environmental Protection Agency, Jn re Brunswick

Steam Electric Plant, Decision of the General Counsel, EPA

GCO 41 at fn. 10 and accompanying text (June 1, 1976) (The

decision notes that “[iJn the course of debating the conference

report of the Act on October 4, 1972, the Senate was well aware

of the dangers posed to aquatic life by the withdrawal of large

volumes of water through cooling water intake structures” and

cites in a footnote Senator Buckley’s reference to two newspaper

articles relating to the environmenta! impacts of cooling water

systems at power plants on the Hudson River.).

“ Hutson, supra note 2 at 42 citing Bozek, A towering chal-

lenge, Electrical Perspectives, January/February 2002 (Avail

able at http://www.eei.org/magazine/editorial content/nonav _

stories/2002-01-01-tower.htm).

substantially avoiding both the known and unknown

environmental impacts of cooling water intake struc-

tures. The selection of these cooling water systems

available for minimizing adverse environmental im-

pacts is therefore the most logical and practical

choice and is the solution that Congress intended.

While Congress did not have the benefit of the past

thirty-five years of intensive research to know that

the true extent of the contribution of cooling water

intake structures to ecological harm would remain

unknown, and perhaps unknowable, Congress’ choice

of words makes clear that it understood this was a

possibility. Rather than leave this important policy

question — whether to force industry to install the

best technology available regardless of the known or

quantified benefit — to EPA, Congress established the

standard in Section 316(b). Confronted with uncer-

tainty, Congress chose to act and to require, not just

any technology, but the “best technology available

for minimizing adverse environmental impact.” 33

U.S.C. § 1326(b).

Cc. The Value of the Ecological Integrity

of the Nation’s Waters Cannot be

Quantified

Congress’ decision to use a technology-forcing ap-

proach in Section 316(b) was a rational policy choice.

In this case, the Court does not need, and should not

be tempted, to adopt a particular economic policy

in order to make a decision. The debate among

proponents of various economic or social policy

theories is a debate that belongs generally, and in the

case of Section 316(b) actually took place, in Con-

gress. The language of the Clean Water Act provides

sufficient guidance to make it clear that EPA strayed

beyond its authority when it employed cost-benefit

analysis in determining the “best technology avail-

able” for existing power plants. As noted in

Respondents’ brief at greater length, pages 33-43,

Congress knows how to require cost-benefit analysis

and did not do so in this instance. American Textile

Mfrs. Institute, Inc. v. Donovan, 452 U.S. 490, 510

(1981).

Although the Court need not settle on any

particular rationale, it is worth noting that Congress’

choice of a regulatory approach in this case is

supported by well-considered policy considerations.

For instance, requiring the use of the “best technol-

ogy available for minimizing adverse environmental

impact” is consistent with a concept referred to as the

precautionary principle. This approach, requiring

preventive action in the face of uncertainty, is not a

new one and is found not only in the Clean Water Act

but in other environmental laws such as the Clean

Air Act. Professor Percival notes that, “the essential

notion embodied in the precautionary principle — that

uncertainty should not be used as an excuse to

eschew cost-effective preventive measures — is funda-

mental to modern environmental law’s quest to

transcend the limits of its common law legacy.””

EPA itself used the language associated with this

principle when adopting the Phase I regulations in

2001." Use of a precautionary approach provides the

" Percival, Who's Afraid of the Precautionary Principle? 23

Pace Envtl. L. Rev. 21, 22 (2005).

™ National Pollutant Discharge Elimination System: Regula-

tions Addressing Cooling Water Intake Structures for New

Facilities 66 Fed. Reg. 65,256, 65,293 (Dec. 18, 2001) (“EPA and

other fishery scientist [sic] support the concept of a precaution-

ary approach, particularly when dealing with complex sys-

tems.”) citing Dayton, Reversal of the burden of proof in fisheries

management. 279 Science 821-822. (1998).

best means to address the uncertainty associated

with the ecological impacts of once-through cooling

water systems and is the approach most consistent

with objectives and goals of the Clean Water Act.

Another way to understand the rationality of

Congress’ choice is through the deep connection that

Americans have with their rivers, lakes, estuaries

and coastal waters. Commercial fisheries represent

more to our nation than the dollar value of their

eatch but are instead part of the cultural fabric of

many communities impacted by the decline in fishery

ecosystems. Similarly, recreational fishing repre-

sents much more to Americans than the sum of the

tourism dollars or money spent on baitfish and

fishing equipment. For many American Indian com-

munities, fisheries have deep spiritual meaning

grounded in shared cultural experiences. In the

words of law professor Lisa Heinzerling and econo-

mist Frank Ackerman’s recent book critiquing the

misapplication of cost-benefit analysis, the benefits

from protecting the environment are “priceless,” and

“[clost benefit analysis of health and environmental

policies trivializes” the values underlying modern

environmental laws.” Similarly, economist Eric

Davidson discusses the intangible benefits of

protecting ecosystems, noting that the affected life “is

a type of natural capital that is virtually irreplace-

able and, therefore, invaluable.... [W]hen the value of

a resource is unmeasurable by economists’ tools, it is

not unvaluable, but rather invaluable.””

“Td. at 8.

* Ileinzerling, et. al., Priceless; On Knowing the Price of

Everything and the Value of Nothing (2004) 234.

“Eric A. Davidson, You Can't Bat GNP: Economics As If

Ecology Mattered, 45 (Perseus Publishing 2000).

In its cost-benefit analysis of cooling water intake

structures, EPA ignores these underlying values and

instead has adopted an approach which balances the

known economic costs to the industry of installing

alternative technologies to reduce impingement and

entrainment against a calculation limited to only the

known and quantifiable benefits of avoiding harm to

aquatic ecosystems.” Although acknowledging the

fact that these ecological impacts are complex and

not fully known, EPA simply side-steps those com-

plexities and makes assumptions in order to assign a

numerical benefit value to the loss of fish.” This

analysis is not only incomplete, since it ignores a

wide range of non-commercial fish impacts, but also

fundamentally unsound given the uncertainties.

When Congress passed the Clean Water Act, they

asked EPA and states to work together to protect and

restore the biological integrity of our waters as well

as the chemical and physical. As noted above, this

Court has understood this language as a directive to

protect and restore the “ecological integrity” of the

nation’s waters. Riverside Bayview Homes at 132-33.

Congress decided that we must restore the ecological

integrity of our waters, not just because it is neces-

sary to our economic well-being, but because restor-

ing our rivers, lakes and harbors is fundamental to

our nation’s identity. EPA’s decision to balance such

* National Pollutant Discharge Elimination System Final

Regulations to Establish Requirements for Cooling Water In-

take Structures at Phase II Existing Facilities, 69 Fed. Reg.

41,576, 41,655-64 (July 9, 2004). Pet. App. 472a-515a.

“ National Pollutant Discharge Elimination System— Pro-

posed Regulations to Establish Requirements for Cooling Water

17,122, 17,192.23 (April 9, 2002)

a profound goal against costs where Congress did not

instruct them to do so, assumes more power than

Congress has given the agency. Due to the complex-

ity of aquatic ecosystems, and their importance to

Americans, Congress made this choice for EPA and

required the agency to choose the best technology

it could find available. Congress has thus already

considered this issue and its determination in Section

316(b) that EPA should choose the “bes

available to minimize adverse environmental im-

pacts” should be respected.

CONCLUSION

The Court should affirm the holding of the Second

Circuit that Section 316(b) does not authorize EPA to

perform a cost-benefit analysis when determining the

“best technology available.”

Respectfully submitted,

DAvipD K. MBARS *

ENVIRONMENTAL AND NATURAL

RESOURCES LAW CLINIC

VERMONT LAW SCHOOL

P.O. Box 96

South Royalton, Vermont 05068

* Counsel of Record (802) 831-1627

I would like to express appreciation to Vermont Law

School Student Clinicians Ashley Laney, Aaron Lotlikar

and Daniel Sotelino who contributed substantially to the

development of this brief.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.