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TEL : 212-242-2355 FAX : 855-242-7956 www.superlawgroup.com October 31, 2013

Via Electronic Mail and U.S. Mail

Donna Wieting Director, Office of Protected Resources

National Marine Fisheries Service 1315 East-West Highway, F/PR3 Silver Spring, MD 20910 donna.wieting@noaa.gov

Gary Frazer Assistant Director, Endangered Species

United States Fish & Wildlife Service

4401 North Fairfax Drive Arlington, VA 22203 gary_frazer@fws.gov

Robert K. Wood Director, Engineering an d Analysis Division Office of Water, U.S. Envi ronmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, D.C. 20460 wood.robert@epamail.epa.gov

Re: Comments of Riverkeeper, Sierra Club, Na tural Resources Defense Council, Center for Biological Diversity, American Littoral Society, Southern Alliance for Clean Energy, Environment America, Earthjustice, Dela ware Riverkeeper Network, New York/New Jersey Baykeeper, Casco Baykeeper, Los Angeles Waterkeeper, and the Waterkeeper Alliance Regarding ESA Biological Evaluati on for CWA Section 316(b) Rulemaking and

Initiation of Formal Consultation on EPA’s Fi nal Regulations to Establish Requirements for Cooling Water Intake Structures at Exis ting Facilities and Amend Requirements at

Phase I Facilities.

Dear Ms. Wieting and Mr. Frazer,

We write on behalf of Riverkeeper, Si erra Club, Natural Resources Defense Council, Center for Biological Diversity, American Littoral Society, Sout hern Alliance for Clean Energy, Environment America, Earthjustice, Delaware Riverkeeper Network, New York/New Jersey Baykeeper, Casco Baykeeper, Los Angeles Wa terkeeper, and the Waterkeeper Alliance (“Commenters”). On June 18, 2013, the U.S. E nvironmental Protection Agency submitted to you a Biological Evaluation, supporting material s, and a request for formal consultation, pursuant to Section 7(a)(2) of the Endangered Species Act, with the National Marine Fisheries Service and the U.S. Fish & Wildlife Service (i ndividually “NMFS” and “FWS”, and together “the Services”). The subject of this consultation is EPA’s pending release of final regulations to2 implement Section 316(b) of the Cl ean Water Act at existing industr ial facilities. Section 316(b) requires EPA to establish regulations that minimi ze the adverse environmental impact of cooling

water intake structures at industr ial facilities that are subject to the National Pollutant Discharge Elimination System (“NPDES”).

We have reviewed the Biological Evalua tion and supporting materials prepared by EPA, and we are deeply concerned. EPA has not comp lied with its duty to assist the Services in issuing a Biological Opinion (“BiOp”) by providi ng “the best scientific and commercial data

available or which can be obtaine d during the consultation for an ad equate review of the effects that an action may have upon listed species or cri tical habitat.” 50 C.F. R. § 402.14(c). We have prepared this letter and supporting materials 1 to assist the Services in obtaining the best available data in order to reach a thorough, comprehensive, and reasoned opinion as to whether EPA’s rule “is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.” 50 C.F.R. § 402.14(g)(4). 2

TABLE OF CONTENTS Page

1. Summary ....................................................................................................................... .......3

2. Background: significance of the biological evaluation ........................................................5

3. Complexity and completeness .............................................................................................6

4. Despite EPA’s failures, the Services must gather and use the Best Available

Data .......................................................................................................................... ...........8

5. The Biological Evaluation is premised on an unlawful interpretation of the ESA ..............9

6. EPA has not presented the Best Av ailable Data to the Services ........................................19

7. The Services cannot reach a no jeopardy fi nding on the basis supplied by EPA. .............35

1 The supporting materials referred to below are volum inous, totalling over 90 MB. Thus in addition to sending this letter via electronic mail, we will also send you a hard copy of this letter along with a compact disc of the supporting materials.

2 “Jeopardy,” with its focus on the survival and recove ry of the species, and “the adverse modification of critical habitat” that is prohibited under the ESA, 16 U.S.C. §1536(c)(2), are not equivalent or interchangeable terms. Sierra Club v. U.S. Fish and Wildlife Service , 245 F.3d 434, 441-43 (5th Cir. 2001). Therefore, EPA and the Services must analyze each of these elements and not “jeopardy” alone.3 8. The deadline for EPA to issue a final rule is likely to be extended; the Services should take this opportunity to demand th at EPA provide the be st available data. ...........38

9. Closed-cycle cooling technology should be the focus of any Reasonable and Prudent Alternative (RPA) analysis or Reasonable and Prudent Measures (RPM) analysis................................................................................................................. ..39

10. A closed-cycle cooling rule is the only option that allows the Services to develop a defensible incide ntal take statement. .................................................................41

11. The BiOp(s) must significantly improve monitoring and reporting of impacts on listed species ................................................................................................................ ......42

12. As a condition of any BiOp, the Services must demand that EPA’s rule ensures that all NPDES permits authorizing oper ation of a cooling water intake state clearly that permitted facilities must obtain an Incidental Take Permit under Section 10 of the ESA if there are listed speci es or critical habita t in the vicinity of the facility that may be a dversely affected by its operation. .........................................44

13. The Services must clarify how they w ill address the ongoing and rapid listing of hundreds of species and thei r critical habitats. ..................................................................45

14. NMFS has additional responsibilities unde r the Marine Mammal Protection Act

and the Essential Fish Ha bitat provisions of th e Magnuson-Stevens Act. ........................45

15. Request for meeting ........................................................................................................... 48

16. Conclusion .................................................................................................................... .....48

1. Summary

EPA’s Biological Evaluation for its proposed co oling water system regulations falls far short of the requirements of the Endangered Species Act. The agency is about to finalize a rule that authorizes power plants to continue operating on ce-through cooling water intakes that kill many hundreds of billions of organisms annua lly, including millions of threatened and endangered fish and other animals. The rule al so has adverse effects on the habitats of hundreds of endangered species in an action area that incl udes nearly every major waterbody in the United States. EPA has approached the Services very late in the rulemaking proce ss, within months of a court-ordered deadline to promulgate a final rule, and stated that, even after years of research and policy formulation, it has collected almost none of the information the Services need to determine whether continued operation of these c ooling water intakes will avoid jeopardizing the survival or the recovery of listed species or adversely modify thei r critical habitat.4 EPA did conclude that cooling water intakes harm endangered species both directly and indirectly, that cooling water intakes overlap with habitat us ed by 215 listed a quatic species, 3 that there are 21,039 potential interactions between a particular intake and a particular species (meaning that, on average, each species is affected by nearly 100 intakes), 4 that 94% of all intakes overlap with at least one listed species, 5 and that 153 facilities kill fish and release waste heat in more than 290 designated critical habitats. 6 Clearly, the risks of harm to endangered species are both widespread and substantial.

But, with only a handful of exceptions, EPA claims to be unable to quantify or even qualitatively describe the extent of these harms with respect to particul ar endangered species in particular waterbodies. EPA know s that a great deal of harm is occurring generally, but claims to be unaware of how any particular endangere d or threatened populations are holding up under the continued onslaught of habitat modificat ion, impingement, and entrainment caused by cooling water systems regulated under its new rule.

Not having done its homework, EPA now seeks a blank check from the Services to allow power plants to kill endangered species on the fl awed basis that its rule may marginally reduce the number of endangered animals that EPA author izes power plants to kill every year. Of course, any reduction in the killing of endange red species is welcome. But where EPA’s regulations allow power plants to kill millions of endangered animals every year, the question is not whether a change that may prevent the deat hs of a few animals is good, but whether an EPA

action that authorizes the continue d killing of millions more jeopard izes the survival or recovery of these species or results in the destruction or adverse modification of critical habitat.

The limited and inadequate record that EPA ha s presented to the Services cannot support a no jeopardy finding. In fact, the evidence that EPA has provided is so deficient that it likely cannot support any serious analysis by the Se rvices. As Commenters note below, EPA has ignored a wealth of readily available informa tion about the impacts of cooling water intakes on listed species that is available in the academic literature, in government reports authored by other agencies, and even in EPA’s own records.

The Services should demand that EPA actually provide them with the best available scientific and commercial data to support a biolog ical analysis. Failing that, the Services must gather and analyze for themselves the readily av ailable information that EPA has ignored, some

of which Commenters have attach ed to this letter.

3 See Biological Evaluation (“BE”) at 60.

4 See id. at 60.

5 See id. at 61.

6 See id. at 60 and Table 7-1, 83-88.5 Finally, if the Services decide not to seek better info rmation at this time and instead choose to issue Biological Opinions (BiOps) with such a poor base of information and so much residual uncertainty about the harms done by EP A’s rule to various listed species, the only possible conclusion is that EPA’s proposal to continue the operation of hundreds of existing cooling water systems jeopardizes the continue d existence of numerous endangered species, including a number of salmonid and sturgeon Distinct Population Segments, and various species of freshwater mussel. And the only reasonable a nd prudent alternative to EPA’s rule that can avoid jeopardy is a requirement to use closed-cycle cooling at mo st or all large cooling water intakes, and a requirement for cooling water in take operators to adopt significantly better monitoring practices to measure and a void impacts on endangered species.

2. Background: significance of the Biological Evaluation

EPA acknowledges in the Biologi cal Evaluation that the stat us quo it has tolerated for decades, largely unrestricted kill ing of listed species by cooling water intakes, is illegal:

EPA acknowledges that T& E species have been impacted by CWIS (as documented in Section 3.0) and recognizes th at any take of listed species without an incidental take statement or ESA Section 10 take permit is in violation of ESA regulations. . . . [EPA] does not suggest that the status qu o, which includes the take of T&E species, is acceptable. 7

EPA also admits that it is starting from an incredibly poor understanding of the context: there are enormous gaps in EPA’s understandin g of how many endangered animals are killed by cooling water intakes. EPA’s be st quantitative estimate looks at just 20 out of the 215 listed species that EPA believes are affected by this rule. Based on documented kills, most of which are not extrapolated out to popul ation-wide values, EPA nonethele ss reckons that the annual take of endangered species easily runs to more th an 10 endangered sea turtles, 600 Chinook salmon, 60,000 smelt, and 790,000 sturgeon, along with unknown millions of other threatened and endangered organisms from dozens (and possibly hundr eds) of different listed species. Sadly, EPA provides the Services with absolutely no information on population viability, distribution, or trends – even for those twenty species – to help put these very lim ited figures in context.

On this flimsy basis, EPA is asking the Services to opine that a rule that perpetuates this status quo of blind and unmitigated killing, a ru le that allows continued operation of oncethrough cooling systems with only the slightest of reductions in harm, will not jeopardize the

continued existence of li sted species. But at best, EPA’s proposed rule, 8 which was based on a numeric impingement standard and a case-by- case, open-ended decision making process for

7 Id. at 65.

8 See EPA, National Pollutant Discharge Elimination System – Cooling Water Intake Structures at Existing Facilities and Phase I Facilities , Proposed Rule, 76 Fed. Reg. 22,174 (April 20, 2011) (the “Proposed Rule”).6 entrainment, will have little effects on the number of fish killed. In fact, as explained more fully below, EPA’s proposed rule could actually increa se the number of fish killed by cooling water intakes. And since the rule likely will not reduc e the capacity or flow of cooling water systems (and may even increase them), by extension, the rule also will not reduce the discharge of thermal and chemical pollution from EPA-regulated facilities. Based on the proposal, it appears that EPA may have decided to carry out the ma ndate of Section 316(b) of the Clean Water Act by creating a rule that allows cooling water systems throughout the United States to kill hundreds of billions of organisms, and discharge thousands of Petajoules of waste heat, fundamentally altering thousands of miles of riverine and estuarine habitat. 9

The importance of this consultation may be unprecedented for two other reasons. First, almost none of this harm to endangered species has ever been evaluated under the ESA before. Astoundingly, although the ESA has been law for 40 years, EPA has never asked systematically whether these staggering fish kills and ecosystem modifications jeopardize either the survival or recovery prospects of listed species or destr oy or adversely modify critical habitat.

Second, because the Clean Water Act is largel y administered by the States, there are no other opportunities to evaluate th e systemic impact of cooling water intakes on the recovery and survival of endangered populations. With the exception of a handful of facilities owned or controlled by federal agencies, or whose NPDE S permits are issued directly by the federal government, this rulemaking is the single federal action that authorizes continuing operation of thousands of cooling water intakes and therma l discharges throughout the United States.

Therefore, this is the only opportunity to conduc t an ESA analysis and issue an incidental take statement from a comprehensive perspective that looks at the full range of impacts on the entire U.S. population of most of these endangere d and threatened species. This makes EPA’s failure to provide the best available commercial a nd scientific data on the effects of its action and the status of affected species all the more problematic. Any s ubsequent BiOp and Incidental Take Statement (“ITS”) by the Services based on this inadequate compilation or evaluation of data would similarly be inadequate.

3. Complexity and completeness

Unquestionably, this consultation will lead to one (or two) of the most complex and ecologically significant BiOps that th e Services have ever been aske d to render. Yet the task is

9 EPA’s BE and its proposed rule should take into account and be coordinated with the States’ CWA §303(d) lists, to determine whether the waters impacted by cooling water intake and subsequent discharge are listed due to habitat degradation, temperature, di ssolved oxygen levels, or other factors related to once-through cooling water intakes. And EPA should c onsider the effect of its proposed rule on total maximum daily loads (TMDLs) for temperature in impa ired waters, or the absence of such TMDLs. As the lists and TMDLs are subject to EPA approval, th ey are in EPA’s possession and should be considered

“available” data.7 far from insurmountable. And the federal courts have demanded complete, thorough BiOps that

meet all of the ESA’s standards in similar or even more complex situations in the past.

For example, because of the national reach a nd complex effects of pesticides, the Section 7 consultation handbook describes pe sticide registration BiOps as among the most complex ever undertaken. Yet NMFS has developed BiOps to s upport multiple pesticide registrations, one of the notable was EPA’s re-registra tion of six widely used pes ticides, including chlorpyrifos, diazinon, and malathion. The 482 page final BiOp concluded that re-regis tration of those three pesticides jeopardized 28 endangered salmonids and 26 critical habitats. See Dow AgroSciences

LLC v. Nat’l Marine Fisheries Serv. , 707 F.3d 462, 466 (4th Cir. 2013).

A few years after drafting the consulta tion handbook, NMFS issued a global BiOp covering the U.S. military’s use of Low Frequenc y Active Sonar from hundreds of ships, located across millions of square kilometers of ocean, in nearly every waterbody on the planet. In that case, NMFS was asked to evaluate the impact of sonar use upon uncounted millions of marine mammals and other animals including endangered sp ecies of whales, dolphins, seals, sea turtles

and salmon. See NRDC v. Evans , 364 F. Supp. 2d 1083 (N.D. Cal. 2003).

The Services also developed a BiOp for th e Forest Service on its ongoing use (which began in 1955) of chemical fire retardants throughout all National Fo rest System Lands. Forest Serv. Emples. for Envt’l Ethics v. United States Forest Serv. , 726 F. Supp. 2d 1195, 1202 (D. Mont. 2010). In that case, the Fish and Wildlif e Service defined the ac tion area as “all National Forest System lands (totaling 192 million acres) together with a buffer area surrounding those

lands” while NOAA Fisheries define d the action area “broadly to en compass lands and waters of the United States with particular emphasis on [F orest Service] lands and adjacent properties.” Id

. Together, the Services considered effects upon 414 listed species. See id

.

Notably, although the Services completed dauntingly complex BiOps in these cases and others, the courts rejected asp ects of these final BiOps because either the action agency or the consulting agency attempted to cut corners. The Dow AgroSciences court vacated and remanded the pesticide BiOp primarily because NMFS failed to explain its modelling and chose to rely on water quality data that it acknowledged was out dated and inaccurate, while overlooking more

recent data. See Dow AgroSciences LLC. , 707 F.3d at 475. Similarly, the NRDC v. Evans court rejected the LFA sonar BiOP’s conclusions be cause NMFS authorized adverse modification of critical habitat that was necessary to the recove ry of various species and the military deliberately withheld some of the best available scientific information from NMFS, leading NMFS to ultimately issued a no jeopardy opinion that did not include the required incidental take

statement. See NRDC , 364 F. Supp. 2d at 1127-1139. Finally, the Forest Service Employees for

Environmental Ethics court rejected the Forest Service’s and Fish and Wildlife Service’s claims that it was just too hard to do a proper BiOp for “a consultation that involved 387 species and an

action area of more than 192 million acres.” Cite. The court explained that “Defendants cannot excuse the failure to comply with the law Congress passed by arguing that compliance would be

too hard.” Forest Serv. Empls. for Envt’l Ethics, 726 F. Supp. 2d at 1224. Even when the Services are faced with a comple x analytical task in a nationw ide or global BiOp, the federal8 courts demand and expect that final BiOps will meet the ESA’s standards for comprehensive, detailed analysis. The courts will not tolerate illegal shortcuts, failure to consider habitat necessary for species recovery, action agencies that withhold the best ava ilable data, or Service BiOps that ignore that data. 10

4. Despite EPA’s failures, the Services must gather and use the Best Available Data.

The ESA requires the Services to base their BiOps on the best available commercial and scientific data regarding the e ffects of a proposed federal action and the status of the affected species. See, e.g.

, Conner v. Burford , 848 F.2d 1441, 1454 (9th Cir. 1988) (“In light of the ESA requirement that the agencies use the best scientific and commercial data available to insure that protected species are not jeopard ized, 16 U.S.C. § 1536(a)(2), th e FWS cannot ignore available biological information”); Miccosukee Tribe of Indians v. United States , 566 F.3d 1257, 1265 (11th Cir. 2009) (“In deciding what is ‘best available’ the Servi ce is required to seek out and consider all existing scie ntific data.”) (quoting Heartwood, Inc. v. U.S. Forest Serv. , 380 F.3d 428, 436 (8th Cir. 2004)).

EPA’s inadequate BE has left the Services ill-equipped to perform their duty. Under the ESA, EPA must support the Services in renderi ng their opinions by providing them “with the

best scientific and commercial data available or which can be obtained during the consultation for an adequate review of the effects that an action may have upon listed species or critical habitat.” 50 C.F.R. § 402.14(d). Instead, EPA has provided exactly the kind of input data to the Services, “limited in scope, heavy on general background information, and deficient in focused and meaningful discussion and analysis of how these large [fish takes], and complex management measures which regulate them, affect endangered [species]” that the courts have rejected when found in a final BiOp. Greenpeace v. Nat’l Marine Fisheries Serv. , 80 F. Supp. 2d 1137, 1148 (W.D. Wash. 2000). Those parts of EP A’s Biological Evaluation describing the affected species and their habitats are written at a leve l of generality that prevents the Services from performing any meaningful analysis. A nd EPA has provided virtua lly no information to

10 Although the courts hold the Services to the ESA’s demanding standards, once those standards are met the courts will defend the Services’ reasoning agai nst all comers. This is illustrated nicely in Greenpeace

v. Nat’l Marine Fisheries Serv. , where the district court rejected a vague, rushed, and inadequately researched NMFS BiOp for an Alaskan fishery that a ffected endangered Steller sea lions, condemning the BiOp and the quality of the data underl ying that BiOp in harsh terms. See 80 F. Supp. 2d 1137 (W.D. Wash. 2000). Thirteen years later, in State of Alaska v. Lubchenco , the Ninth Circuit revisited a new BiOp governing the same fishery, and this time it upheld NMFS’ BiOp against industry challenges. State of Alaska v. Lubchenco , 723 F.3d 1043 (9th Cir. 2013). The difference was that the subsequent BiOp, which concluded “that continuing to authorize fisheries at the levels previously authorized in the fishery management plans would both jeopardize the continue d existence of the wDPS [of Steller sea lions] and adversely modify its critical habitat,” did not repeat the earlier BiOp’s mistakes of “focusing solely on a vast scale” and providing only vague information with little analysis. Id. at 1050, 1052. The second time around, NMFS more carefully “consider[ed] the imp act of sub-populational decline on a species as a

whole.” Id. at 1052.9 the Services about the status of the various populations of threat ened and endangered species that are harmed by federally-regulated cooling water systems.

EPA claims that the kind of data that the Services need to their job properly simply do not exist, but this is plainly false. Through this submission, Commenters will do what they can

to assist the Services in fill ing the large gap that EPA has le ft. It remains incumbent on both EPA and the Services, however, to comply with th eir respective statutory obligations to ensure that the final BiOp is based on the best available scientific data. It would be arbitrary, capricious, and in contravention of the ESA and APA, for eith er EPA or the Services to take final agency

action in the absence of a first-ra te effort on the part of all thre e agencies to obtain and analyze such data. The ESA does not allow the Services to issue a BiOp based on limited and incomplete analysis if some of the information needed is av ailable but simply could not be analyzed in the

time allowed. Greenpeace , 80 F. Supp. 2d at 1148. The Services have authority to request that EPA furnish the data necessary to ensure an informed analysis. See 50 C.F.R. § 402.14(f).

5. The Biological Evaluation is premised on an unlawful interpretation of the ESA.

At the outset, Commenters note that EPA is attempting to compensate for the deficiencies in its data provision by trying to move the ESA’ s goalposts. In the Bi ological Evaluation, EPA is clearly attempting to encourage the Services to accept two unlawful propositions as the basis for the BiOp:

 EPA suggests that the BiOp should examine only how the rule w ill change the number of fish killed in comparison to current levels of impingement and entrainment. For example, EPA’s discussion of the “effects of the proposed action” begins with the

statement: “This section eval uates the potential effect of the proposed action on ESAlisted species and designated cr itical habitats. This eval uation is based on comparison

of the baseline I&E with that estimated under the fi nal rule.” BE at 73 (emphasis added). EPA then argues that its action is benevolent because “[t]he proposed action does not authorize any new activ ities or increased discharg e of pollutants,” BE at 81.

And EPA concludes with th e assertion that “[u]nder the final rule, regulated improvements in CWIS characteristics and opera tions will have the designed effect of reducing I&E mortality, which in turn is expected to have beneficial effects for some T&E species.” BE at 90.

 EPA also implies that the Services’ BiOp need not include a thorough analysis of impacts on listed species or critical h abitat because a full ESA analysis can be deferred to a later date. For example, EPA states that “[u]nder the final rule, all regulated facilities are required to submit baseline source water biological characterization data. Among other data, these studies will identify T&E species present . . . [In addition the rule requires] entrainment studies [that] may identify IM&E of T&E species, information that will be considered by EPA in its determination of BTA for EM on a facility -specific basis, both at the facility10 conducting the IM&E study, as well as at near by facilities.” BE at p. 55. EPA repeats elsewhere in the BE that the five-year NPDES permit cycle provides “an opportunity to regularly review ESA issues and adjust discharge permit conditions or monitoring requirements as needed.” BE at 4.

Both propositions are counterfactual and unlaw ful, as explained more fully below.

a. There is no such thing as “baseline I&E” or “baseline thermal discharge”

EPA’s first tactic is a transparent effort to ga me the baseline for the forthcoming BiOp(s). Contrary to EPA’s assertion, th ere is no such thing as “basel ine I&E” (or “baseline thermal discharge”). EPA has regulatory options for impl ementing the mandate of Section 316(b), that is, how to minimize the adverse environmental imp act of cooling water systems. Because EPA is authorizing continued operation of hundreds of ex isting cooling water intakes, the BiOp must look at the full impact of continuing to operate these intakes, including all continuing impingement and entrainment and discharges of th ermal pollution, as well as all other impacts, in determining whether EPA’s rulemaking jeopardizes the continued existence of any species or adversely modifies any designa ted critical habitat.

The ESA demands that federal agencies “afford first priority to the declared national policy of saving endangered species” in light of the “conscious decision by Congress to give endangered species priority over the ‘primary missions’ of federal agencies.” Tennessee Valley

Auth. v. Hill , 437 U.S. 153, 185 (1978). This means that “[w]hen an agency, acting in furtherance of a broad Congre ssional mandate, chooses a cour se of action which is not specifically mandated by Congress and which is not specifically neces sitated by the broad mandate, that action is, by definition, discretionary and is thus subject to Section 7 consultation.” Nat’l Wildlife Fed’n v. Nat'l Marine Fisheries Serv. , 524 F.3d 917, 929 (9th Cir. 2008). In this case, EPA’s discretion in carrying out its duty under Section 3 16(b) of the Clean Water Act must be exercised in a manner that neither jeopardizes the recovery or survival of listed species nor adversely modifies critical habitat. See, e.g.

, Am. Rivers, Inc. v. U.S. Army Corps of Eng’rs. , 421 F.3d 618, 631 (8th Cir. 2005) (“[T]he FCA does not ma ndate a particular level of river flow or length of navigation season, but rather allows th e Corps to decide how best to support the primary interest of navigation in balance with other interests. . . . Because the Corps is able to exercise its discretion in determining how best to fulfill the purposes of the reservoir system’s enabling statute, the operation of the reservoir system is subject to the requirements of the ESA.”).

In determining whether EPA’s rule jeopardi zes listed species or adversely modifies critical habitat, the Services must “evaluate the current status of the listed species” and “[e]valuate the effects of the action and cumulative effects on th e listed species or critical habitat.” 50 C.F.R. §§ 402.14(g)(2)-(3). This requires the Services to distinguish between the pre-action condition of all affect ed species and critical habita t and the direct, indirect, and

cumulative effects of EPA’s action:11 “‘Effects of the action’ include both direct and indirect effects of an action that will

be added to the ‘environmen tal baseline.’ The environmental baseline includes ‘the past and present impacts of all Federal, State or private acti ons and other human

activities in the action area’ and ‘the an ticipated impacts of all proposed Federal projects in the action area that have al ready undergone formal or early section 7

consultation.’”

Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv. , 422 F.3d 782, 790 (9th Cir. 2005) (citing regulatory definitions found at 50 C.F.R. § 402.02).

The baseline does not include future fish kills or habitat impacts. The courts have held numerous times that where, as here, a federa l agency exerts contro l over ongoing activities, practices or operations that affect listed species, the “effects of the action” include the full future consequences of continuing those acti vities, practices, or operations.

The prohibition against gaming the baseline is stated clearly and recently in National Wildlife Federation v. National Marine Fisheries Service , a case related to continued operation of the Federal Columbia River Power System (FCRPS), an immense series of dams and reservoirs on the Columbia River, most of which were built more than 50 years ago. See 524 F.3d 917 (9th Cir. 2008). Dams affect endangered a quatic species in many of the same ways that cooling water intakes do: they modify water temp erature, block fish passage, and in the case of hydroelectric dams, can impinge and entrain fish in their intakes. With respect to the FCRPS,

the Ninth Circuit affirmed the trial court’s re jection of a BiOp becau se the BiOp’s jeopardy evaluation compared the effects of the planned operations of the FCRPS to a hypothetical state of operations that “degraded” the baseline by folding in part of the power system’s ongoing impact. Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv. , 524 F.3d 917, 929 (9th Cir. 2008). The court held that it was illegal for federal ag encies to attempt to disregard certain ongoing impacts of FCRPS operations, rather than focusing “on whether the action effects, when added to the underlying baseline conditions, woul d tip the species into jeopardy.” Nat’l Wildlife Fed’n v.

Nat’l Marine Fisheries Serv. , 524 F.3d 917, 929 (9th Cir. 2008). Th e court explained that there

was a critical difference between the basic existence of the dams and the discretionary federal

decision about how to co ntinue operating them:

“The current existence of the FCRPS da ms constitutes an ‘existing human activity’ which is already endangering the fishes' survival and recovery. See ALCOA, 175 F.3d at 1162 n.6 (citing 50 C.F.R. § 402.02). Although we acknowledge that the existence of the dams must be included in the environmental baseline, the operation of the dams is within the federal agencies' discretion under both the ESA and the Northwest Power Act, 16 U.S.C. § 839.”

Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv. , 524 F.3d 917, 930-931 (9th Cir. 2008) (emphasis added).12 Similarly, in reviewing continued operati on of the federal Klamath Irrigation Project, which had operated for more than ninety years “following essentially the same procedures for storing and releasing water,” th e Supreme Court stated that th e proper focus of a Section 7 consultation was on whether “long-term operatio n of the Klamath Project was likely to jeopardize the continued existence of th e Lost River and shortnose suckers.” Bennett v. Spear

, 520 U.S. 154, 159 (1997). The year after Bennett v. Spear was decided, the Services published

a Section 7 consultation handbook that made clear that , with respect to all federal water projects, the effects of construction and past operation of locks, dams, reservoirs, water diversions, and similar modifications form part of the envir onmental baseline, but BiOps must distinguish

between this baseline and the fu ture direct and indirect impact s of continued operation of these water projects. See Consultation Handbook p.4-30. The same is true for water projects that are not built by the federal government. For exam ple, where private dams are licensed by the Federal Energy Regulatory Commissi on and have existed for many y ears, continued operation of the dams by a municipality is still subject to ESA consultation and to protective measures designed to achieve a 75%-95% fish passage survival rate for e ndangered species that encounter

the dam. See Cowlitz Indian Tribe v. FERC , 186 Fed. Appx. 806, 809 (9th Cir. 2006).

The Services have established court-approve d techniques to disti nguish the existential impact of physical assets like dams and power pl ants (the baseline impact) from the effects of their continued operation (the action). For exampl e, in order to disti nguish between the harms caused by the existence of dams and reservoirs built decades ago on the upper Missouri River, and the harms caused by their continued operation now, “[t]he FWS [Fish a nd Wildlife Service]

used a ‘run-of-the-river’ baseline in which th e dams and physical channel modifications are assumed to be in place, but all floodgates are a ssumed to be wide open, with no flow control.” Am. Rivers, Inc. v. United States Army Corps of Eng'rs. , 421 F.3d 618, 632-633 (8th Cir. 2005). The Eighth Circuit upheld this a pproach as the correct way to distinguish between the past creation of such physical assets and their future operation. See Am. Rivers, Inc. v. United States Army Corps of Eng'rs. , 421 F.3d 618, 632-633 (8th Cir. 2005). 11 ”

In American Rivers , the Eight Circuit expl ained that the Army Corps attempts to add “hypothetical continued operation” of dams to the baseline “is essentially a different twist on the argument that the Corps has no discretion in operati ng the reservoir system. . . . However . . . the FCA ‘clearly gives a good deal of discretion to the Corps in the ma nagement of the River. . . .’”

Id . By analogy with American Rivers , EPA’s suggestion that the current level of impingement, entrainment, and thermal discharge should be co nsidered as the “environmental baseline,” and that the jeopardy analysis of its new regulations should ask only whether the new rules decrease or increase these effects, is tantamount to argui ng that EPA has no ability to affect the existing level of cooling water intake ope rations through its choices in this rulemaking. That is plainly untrue. In enacting regulations to implement th e broad mandate of Section 316(b) of the Clean

11 For EPA’s rule, the equivalent would be a baseline in which cooling water intakes and their associated diversion canals, walls, and other infrastructure exist in rivers and continue to adversely modify habitat (for example through shoreline hardening), but are not operated.13 Water Act, EPA has options for “minimizing adve rse environmental impact ” through controls on the “location, design, cons truction, and capacity” of existing coo ling water systems. 33 U.S.C. § 1326(b).

For example, in its 2011 proposed rule, EP A’s preferred option would allow existing intakes to continue operati ng with only slight reductions in cu rrent levels of take and no effect whatsoever on thermal discharges. At the other extreme, EPA could determine that to minimize adverse environmental impact it is necessary to end all withdraw als of cooling water in the United States, reducing take to ze ro. In between these extremes lie options such as Options 2 and 3 in EPA’s proposed rule, which would require a ll or most of the larges t existing facilities to gradually retrofit to closed-cycle cooling system s, in the process reducing direct take from impingement and entrainment by more than 97% a nd effectively ending the discharge of thermal pollution and its impact on habitat. While some incidental take will continue to occur under these middle-of-the-road options, th e take of listed species take lik ely would drop in parallel with overall mortality, i.e. a decrease of 97% or mo re from current conditi ons, and adverse habitat impacts would decline dramatically as well.

The BiOP in American Rivers also is another good example of the Services’ ability to comply with their duties under Section 7 of the ESA even wh en facing a complex challenge involving the impacts of multiple structures spre ad across hundreds of river miles and multiple endangered species. Although the first BiOp was remanded by a district court for failure to

consider all of the future eff ects of the system’s operation, once the FWS completed a BiOp with the correct scope, the court upheld it against a variety of challenges. See Am. Rivers, Inc. v. U.S. Army Corps of Eng’rs. , 421 F.3d 618, 626-627 (8th Cir. 2005).

The principle that the “federal action” under review in a Section 7 consultation includes all future effects of a federal regulation that au thorizes continuation of an activity or operation applies in all regulatory settings , not just when dealing with wa ter infrastructure. See, e.g., Dow AgroSciences LLC v. Nat’l Marine Fisheries Serv. , 707 F.3d 462 (4th Cir. 2013) (BiOp covering EPA’s re-registration of decades old, commonly us ed pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIF RA) must evaluate all continuing uses of those pesticides); Ctr. for Marine Conservation v. Brown , 917 F. Supp. 1128, 1137 (S.D. Tex. 1996) (BiOp regarding Gulf Coast shrimp fisheries asks wh ether “the continued long-term operation of the shrimp fishery in the southeastern United States [is] likely to jeopardize the continued existence of the Kemp’s ridley sea turtle

. . . .”); Greenpeace v. Nat’l Marine Fisheries Serv. , 80 F. Supp. 2d 1137, 1143-1144 (W.D. Wash. 2000) (quoting Conner v. Burford , 848 F.2d 1441, 1458 (9th Cir. 1988)) (BiOp reviewing the fishery manage ment plans (FMPs) that govern the annual groundfish catches in Alaskan waters must “be e qual in scope to the FMPs” because “biological opinions under the ESA must be ‘coext ensive’ with the agency action.”).

When the government regulates private activ ities on federal lands through plans or policies, the federal action reviewed in a Biol ogical Opinion includes all subsequent regulated activities, and not just any incremental changes fr om the last plan or po licy. The elements of a plan that protect listed species, such as road cl osures or other use rest rictions, are balanced14 against aspects of the plan that might injure species, such as c ontinued (or expanded) road use, logging, or off-road recreational us e authorizations. A ll are considered “rel evant factors” in reaching a final determination as to whether c ontinued use of the federal lands under the plan jeopardizes the continued existence of species in the plan area. See, e.g., Ctr. for Biological Diversity v. Bur. of Land Mgmt. , 422 F. Supp. 2d 1115, 1138, 2006 U.S. Dist. LEXIS 14675 (N.D. Cal. 2006) (rejecting as ar bitrary and capricious a biologi cal opinion that involved both

recreational use of cr itical habitat as well as o ffsetting protection measures); cf. Ctr. for Biological Diversity v. Bur. of Land Mgmt. , 2011 U.S. Dist. LEXIS 114039 (D. Az., Sept. 30, 2011) (upholding a BiOp that reviewed BLM land use regulations for Arizona that included both activities likely to cause take of endangered tortoises and also offsetting conservation measures, stating that, “despite impacts [on endangered tortoises] from OHV use and grazing . . . FWS adequately assessed the current stat us of the desert tortoise popul ation and its critical habitat, analyzed the possible future effects resulting from the RMPs, considered all relevant factors and

the best available scientific da ta, and provided a reasoned and ra tional explanation supporting its ‘no jeopardy’" and ‘no adverse m odification’ determinations.”); See also Forest Serv. Empls.

For Envt’l Ethics v. U.S. Forest Serv. , 726 F. Supp. 2d 1195, 1200 (D. Mont. 2010)(Forest Service’s ongoing practice of annually “dumping milli ons of gallons of chemical fire retardant on national forests” required consultation with Se rvices that considered the full ongoing impacts of all fire retardant use).

Many agencies facing a Section 7 consulta tion on rules or plans that govern ongoing operations or activities have tried to game the baseline in a similar way and failed. There is no such thing as “baseline I&E” or “baseline therma l discharge.” The Services must include all the relevant factors in a jeopardy and adverse modification determin ation – above all, the adverse consequences of allowing hundreds of cooling wate r intakes to continue killing millions of listed organisms. The Services must determine whether, taken as a whole, and in light of baseline and cumulative effects, EPA’s regulation will avoid je opardizing the continued existence of all of the 215 affected species and will protect their hab itat, whether designated as critical or not. 12

Finally, even if EPA’s approach of evaluating only the increase or decrease in “baseline I&E” were legal, the fact is that EPA’s proposed rule is actu ally likely to increase harm to endangered species. As compared to the curren t trends, which began a decade ago, in which a rising number of plants are retrof itting to closed-cycle systems, EPA’s proposal is likely to both

12 All impacts to habitat must be considered as part of the jeopardy analysis, because habitat impacts in turn affect species and thus may contribute to jeopardy. See Miccosukee Tribe of Indians of Florida v.

FWS , 566 F.3d 1257, 1262-63 (11th Cir. 2009) (describing biological opini on which found that continued flooding of non-designated Cape Sable seaside sparro w habitat would lead to species extinction); 50 C.F.R. § 222.102 (“Harm in the definition of ‘take’ in the Act means an act which actually kills or injures fish or wildlife. Such an act may include significan t habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering.”); cf. 16 U.S.C. § 1533(a)(1)(A) (listing “destruction, modification, or curtailment of [] ha bitat” as one rationale for listing species as endangered or threatened).15 reduce the number of existing intakes that are ultimately retrofitted to closed-cycle cooling systems and to increase the total flow of cooli ng water through those ex isting intakes. Thus, EPA’s proposal likely will increase the number of listed organisms killed directly in cooling water intakes and also increase the volume of thermal discharge pollution released that adversely

modifies the habitat of listed species.

To understand why EPA’s proposed rule likely w ill have such effects, it is necessary to first understand the regulatory status quo. In the absence of a federal rule, a few states have adopted policies phasing out all use of once-thro ugh cooling, but most states make case-by-case decisions to regulate cooling water intakes pur suant to the “best professional judgment” provisions of EPA’s NPDES regulations. See 40 C.F.R. § 125.3. “Bes t professional judgment”

determinations under the Clean Water Act consider a limited number of factors. In practice,

“EPA’s record shows numerous instances of ex isting facility retrofits to closed-cycle” 13 under this long-standing approach.

But in the proposed rule, EPA’s preferred op tion abandons the limited factors of the best professional judgment standard in favor of an ope n-ended set of factors that the state’s permitting

director deems to be “relevant.” 76 Fe d. Reg. 22,174, 22,204 (col. 2). Permitting agencies are then simply told to choose the technology th e agency deems “warranted.” 76 Fed. Reg. at 22,283 (col. 2). And EPA now explicitly invite s permitting directors to determine that “no additional control requirements are necessary bey ond what a facility is already doing.” 76 Fed. Reg. 22,262 (col. 2). To the extent that EPA’s pr oposed rule encourages States to consider a broader range of factors than they currently use in settings sta ndards for cooling water intakes, and encourages permittees to provide more complex justifications for lax regulatory standards, EPA’s rule is likely to slow an already glacial re gulatory process even further and to lead some plants that may have been forced to retrof it under the old process to avoid retrofits.

EPA also plans to worsen the status quo by unlawfully extending the schedule for making BTA determinations. Although the Clean Water Act clearly requires that BTA determinations be made and revisited every five years, Under EPA’s proposed rule perm itting directors will be given up to eight years from the effective date of the new rule to make BTA decisions with respect to impingement, and an indefin ite schedule for controlling entrainment. 14

EPA’s new rule also replaces a commonly used and fairly stringent regulatory standard for comparing different cooling system options, called the “wholly disproportionate” standard, with an open-ended formula. Since the 1970’s, EPA and many state permitting authorities have used the “wholly disproportionate” test to interp ret Section 316(b) (EPA writes permits directly

13 76 Fed. Reg. at 22,204 (col. 1).

14 See 76 Fed. Reg. 22,248 (col. 1) (“As proposed, fac ilities would have to comply with the impingement mortality requirements as soon as possible . . . (not to exceed eight years as described below) . . . With respect to entrainment requirements, under the proposal, existing facilities must comply as soon as possible . . . .”).16 for facilities in a few states). Under the “wholly disproportionat e” test, a BTA analysis begins with consideration of the best performing and available technology to reduce entrainment or impingement – which is almost always cooling to wers. Only if the Director rejects the best performing technology because its costs were “w holly disproportionate” to the benefits it provided could the Director consider the next mo st effective technology. In the absence of a final 316(b) Phase II rule governing existing faci lities, many states and EPA Regional Offices have used some variation of this approach. Th is approach has contributed to the above-noted retrofits of many cooling water in takes in recent years. But EPA now plans to do away with the “wholly disproportionate” standard and substitute instead a far weaker cost benefit analysis, under which a Director may rej ect any technology if the cost s “are not justified” by the

benefits. 15

Further, EPA’s rule worsens the stat us quo by introducing a new provision that grandfathers the use of existing once-through cooling systems at many new generating units built at existing power plants, including repowered 16 or replaced generating units at these facilities. Such repowerings and replacements of existing pow er plants are occurring frequently in the current economic circumstances because many older plants have reached the end of their useful life at a point where fu el switching from coal to natural gas makes compelling economic sense. As just one example, the 50 year old B.L. Engl and power plant near Cape May, New Jersey is scheduled to repower over the next five years. It will close down two generating units cooled by an antiquated once-through cooling system. These fifty year old turbines have run as peaking units only for the past ten years. These units will be replaced with a single combined-cycle turbine that is more powerful than either of the two old units, and will run at a much higher capacity factor. But the New Jersey Departme nt of Environmental Protection has already decided that this powerful new turbine can use the 50 year ol d once-through cooling system rather than a closed-cycle coo ling system, despite the fact that there is already a functional closed-cycle cooling system on site that supports a third turbine. The New Jersey Department of

Environmental Protection referenced the pending federal rule in c oncluding that the new turbine,

which will kill at least a billion organisms a year by using the existing closed-cycle cooling system, should be exempted from federal regulat ions for new units that otherwise would have required the use of a cooling tower. 17

Thus, there are two primary effects of EP A’s departure from the “best professional judgment” decision making process, abandonment of the “wholly disproportionate standard,” and grandfathering of repowered or replaced facil ities. First, many existing intakes that would otherwise have been retrofitted to closed cycl e cooling in the coming years now will not be.

15 Proposed 40 C.F.R. § 125.98(e), 76 Fed. Reg. at 22,288 (col. 1).

16 Repowering is the practice of rebuilding and re placing the major components of an existing power plant.

17 New Jersey Department of Environmental Protec tion, Division of Water Quality, Bureau of Surface Water Permitting, BL England Ge nerating Station, NJPDES Permit Number: NJ0005444, Response to Comments, at 16 of 40.17 Second, many of the high capacity factor new gene rating units that are being built to replace low capacity factor older units will be grandfathere d under EPA’s new rule, greatly increasing the “actual intake flow” of existing cooling water intake s. As such, the net effect of EPA’s new rule over the coming years is likely to be an increase in the number of listed an imals killed by cooling water intakes, and an increase in the area of habitat that is adversely modified by thermal discharge, when compared to the situation that would exist if current trends were extended into

the future.

The proposed rule is likely to increase ha rm in other ways as well, for example, by weakening the definition of “species of concer n” under the Clean Water Act in a way that would actually exclude many rare, endemic or uniquely valuable species from future environmental analyses. For a more detailed critique of the ways in which EPA’s proposal actually worsens the status quo, see the a ttached comments on EPA’s 2011 proposal. 18

b. Now is the only opportunity to prepare a co mprehensive and meaningful Biological Opinion.

EPA’s other tactic is to imply that the Serv ices should issue superf icial BiOps that will somehow be supplemented later. This is ille gal and unrealistic. As discussed above, EPA is promulgating an enormously important regulation that will affect hundreds of listed species and their habitats. For most existing intakes, no fede ral agency will be involved in the reissuance of their NPDES permit because these permits are issued by state agencies. The EPA rule is the only federal action affecting these inta kes. Now is the only opportunity for the Services to complete a comprehensive biological opinion. 19

EPA’s statements about how future studies of impingement and entrainment will factor into future NPDES permit reviews are confus ing, if not outright misleading. Most NPDES permits are issued by States, not EPA. The requi rements to perform future studies under EPA’s proposed rule will be enforced by States, not EP A. And the studies themselves are to be performed and supervised not directly by (under- resourced) state agencies, but rather by the permittees, with “peer review ” by experts that are paid by and report to permittees. 20 Thus, it is

18 Comment Letter from Riverkeeper, Inc., Natural Re sources Defense Council, Sierra Club, Waterkeeper Alliance, Earthjustice, Environmental Law And Polic y Center, Clean Air Task Force, Network For New Energy Choices, California Coastkeeper Alliance, Soundkeeper, Inc., Delaware Riverkeeper Network, Save The Bay – Rhode Island, Friends Of Casco Ba y, NY/NJ Baykeeper, Hackensack Riverkeeper, Santa Monica Baykeeper, San Diego Baykeeper, Scenic Huds on, American Littoral Society, And Conservation Law Foundation, re National Pollutant Discharge Elim ination System – Cooling Water Intake Structures at Existing Facilities and Phase I Facilities, 76 Fed. Reg. 22,174 (April 20, 20 11), Docket ID No. EPAHQ-OW-2008-0667, dated August 18, 2011 (her einafter “August 2011 Comment Letter”).

19 In addition, a properly done BiOp or ITS under ESA section 7 should be incorporated into the 316(b) rule itself as the federal action permitting state regul ators to issue permits for cooling water intake systems in their NPDES permits.

20 See August 2011 Comment Letter, at 42-44, 71-72, 82, 160.18 unclear under what legal authority EPA believes it can ensure that these studies are conducted at all, much less in an adequate manner, or how EPA will have a meaningful opportunity to make use of the study results.

Nor is it obvious how EPA intends to use the “five-year cycle” for issuing NPDES permits to periodically review ESA co mpliance at cooling water systems. See BE at 4. First, most periodic NPDES reviews and permit rei ssuances are conducted by the States, not EPA, pursuant to agreements that delegate administrati on of the NPDES program to state authorities. Generally speaking, EPA is not directly involve d in writing or periodically reviewing NPDES permits for cooling water intakes.

Second, many of the states that administer the NPDES program have not examined the effects of existing cooling water intakes in decades and have i gnored existing federal law that requires them to review the impacts of coo ling water intakes in every NPDES permit cycle. 21

These states either do not review the effects of a cooling water in take at all, or they conduct a perfunctory review summarized as “no significant change” in a single sentence placed in a draft NPDES permit fact sheet. 22 EPA has rarely, if ever, challenged these practices.

Third, the NPDES permit backlog for the large power plants that are the main users of cooling water is so great that the five-year permit cycle often takes ten years or more to complete. At coal fired power plants alone, more than 87 million MWh of generation operates without an up-to-date permit as of 2011, and nationwide, 255 existing power plants were operating on expired permits. Many of these permits (at least 65) were expired for more than an entire five-year permit cycle, 23 with a number operating on perm its that expired in 1995 or earlier. As noted above, EPA’s proposed rule would only worsen this problem by creating an extended timeline of up to eight years from th e effective date of the new rule before BTA

21 For example, Section 402(a)(1)(A) of the Clean Wa ter Act authorizes issuance of NPDES permits for point source discharges “on condition that such disch arge will meet ... all applicable requirements under sections [301 and 306],” one of which is section 316(b)’s requirement that cooling water intake structures reflect BTA. Thus, every time a permit writer issues or re-issues a NPDES permit, he or she must ensure that the facility still complies with Section 316(b) . Both EPA’s suspended Phase II regulations, and EPA’s proposed rule, also require explicitly that BT A determinations be revisited with each five year permit cycle. This requirement is found at 40 C.F. R. § 125.98 in both the suspended and proposed

versions of the rules.

22 See GRACE Communications Foundation, Sierra Cl ub, Riverkeeper, Waterkeeper Alliance, River Network, “Treading Water; How States Can Minimize the Impact of Power Plants on Aquatic Life,”

Available at http://www.gracelinks.org/3124/power-plants-kill-fish-treading-water-report.

23 Commenters have attached a list, compiled in 2011, of coal plants with cooling water intakes operating on expired permits; 18 of these were more than 10 years overdue.19 decisions are made for impingement, and EPA is setting an indefinite deadline for BTA decisions regarding entrainment. 24

Once EPA promulgates the Phase II 316(b) regu lations, it will in a ll likelihood wash its hands of the vast majority of all future impacts to listed species and their habitats, except in the very few instances where it retains NPDES permitting authority for regulated facilities. 25 Such an approach to ESA compliance is not reasonably certain to avoid harm and therefore is not lawful. The Services must complete a full BiOp now, while it is still possible for EPA to issue a final rule that meets its ESA obligations to a void jeopardy to listed sp ecies, avoids adverse modification of critical habitat, and implement s all reasonable and prudent alternatives to jeopardy and/or reasonable and prudent measures to minimize incidental take.

6. EPA has not presented the Best Available Data to the Services.

EPA has clearly failed in its obligation to pr ovide the Services with the best available

commercial and scientific data on the effects of its proposed rule and the status of the listed species affected by it. To pr operly support a formal consultati on, EPA should have ensured that its Biological Evaluation contained “the best scientific and commercial data available or which can be obtained during the consultation for an ade quate review of the effects that an action may have upon listed species or crit ical habitat.” 50 C.F.R. § 402.14(d). Instead, EPA’s submission is an exercise in box-checking: it provides limite d information in the categories typical for such a document ( see 50 C.F.R. § 402.12) and falls far short of providing the best available data for the Services’ consideration, despite having access to this best availa ble commercial and scientific

data. 26

24 See 76 Fed. Reg. 22248 (“As proposed, facilities would ha ve to comply with the impingement mortality requirements as soon as possible . . . (not to exceed eight years as described below) . . . With respect to entrainment requirements, under the proposal, existing facilities must comply as soon as possible . . . .”).

25 For most NPDES permits, the only other conceivabl e nexus for federal action is EPA’s ability, under Section 402(d) of the Clean Water Act, to object to state-issued NPDES permits. But surely EPA does not seriously propose to seek 1200+ individual consulta tions with the Services. And even if EPA planned to combine the pending BiOps with thousands of futu re, site-specific BiOps, this would not avoid the need for the Services to reach a conclusion about jeop ardy now and issue an incidental take statement. See Forest Serv. Emples. for Envtl. Ethics v. U.S. Forest Serv. , 726 F. Supp. 2d 1195, 1229 (D. Mont. 2010) (“programmatic” biological opinions are not excused fromthe incidental take requirement). If this sitespecific BiOp approach is indeed the direction that EPA is suggesting to the Services, it is illegal because it is not reasonably certain to avoid jeopardy to listed species and adverse modification of critical habitat. The Services and EPA “may not rely on plans for futu re actions to reduce threats and protect a species.” Or. Natural Resources Council v. Daley , 6 F. Supp. 2d 1139, 1154 (D. Or. 1998).

26 EPA did not even collect and evaluate all Incident al Take Statements, Incidental Take Permits, and state, federal and/or permittee monitoring reports or studies on endangered and threatened species and their habitat (whether designated “critical” or not) related to currently permitted facilities. With these comments we are providing additional data and informa tion to be considered by the agencies, which also indicate the incompleteness of EPA’s data gathering.20 For the most part, the Biological Evaluation is written at a level of generality consistent with high school textbooks. EPA spends five pa ges defining, in single paragraphs, ecosystems such as the “intertidal zone,” th e “pelagic zone,” and “rivers and streams.” See BE at 15-19. But EPA never identifies the actual rivers, intertidal zones, and other ecosystems affected by cooling water intakes and discharges, or quantifies the extent of those impacts. EPA simply contends that it is impossible to do so. But as explained below, it is quit e possible to identify the reaches affected by once-through cooling water systems and use available models to quantify the impacts that cooling systems have upon them, such as the temperature increase caused by thermal discharges.

EPA then spends another 35 pages listing th e 215 endangered species that it believes are affected by the continued operation of existing c ooling water systems and describes most of the genera (not species) affected by the rule in br oad terms, with a sent ence or two on their life history. See BE at 19-54. EPA never once discusses th e status of any of these listed species: population trends, number of breeding i ndividuals, distri bution, etc.

Further, EPA never presents the kind of in formation necessary to determine whether the survival or recovery of even a single listed sp ecies is jeopardized by th e continuing operation of once-through cooling water systems. The BE provides no information on the existence of important sub-populations of liste d species, except for those offi cially listed as Distinct Population Segments, and no information on the im pacts that the rule might have on such important sub-populations. It contains no meani ngful data on habitat m odification generally, nor on designated critical hab itats in particular.

The BE also fails to include well-docume nted and easily accessible information about other ongoing projects that affect listed species, such as dredging operations in the Delaware River, the operation of the Klamath and Columbia River power systems, or the impacts that Gulf, Pacific, and Atlantic coast fisheries have on s ea turtles, sturgeons, and numerous other listed species caught as bycatch. Thus, in addition to no t providing sufficient data about the status of the species affected or the eff ects of impingement, entrainment, and thermal discharges on those species, EPA has also provided woefully insuffi cient information on the environmental baseline or relevant cumulative effects. Overall, the da ta provided by EPA to the Services is insufficient to specify levels of incidental take that might occur for any of the species affected by this rule, even in broad or order of magnitude terms.

Instead, EPA repeatedly claims that it lack s adequate information about the affected species. As these comments show with respect to just a few species and locations, EPA clearly made little or no effort to find that information, de spite the fact that thes e models and data are readily available. The agency has no excuse as to why it overlooked and failed to provide the

Services with this information.

For example, EPA states that, after sear ching through impingement and entrainment studies from 98 facilities, the agency could not find any examples in the last 20 years of21 impingement and entrainment of listed species; th e examples they did find were limited to eight species. See BE at 62-67. But the 98 facilities EP A looked at make up less than 10% of the universe of existing facilities re gulated under Section 316(b). With only a small fraction of EPA’s resources and innate knowledge of the subj ect, Commenters were able to quickly identify several recent examples of c ooling water systems harming enda ngered species, including impacts on species not discussed by EPA. These are discussed below: 27

a. Columbia Generating Station – Intakes and Thermal Discharge Harm Salmonids 28

On May 7, 2012, NOAA wrote to EPA, requesting consultation on EPA’s possible approval of a state-issued NPDES permit for th e Columbia Generating Station in Washington. Two ESA-listed species of steel head and salmon live in the Ha nford Reach of the Columbia River near the plant, and the ar ea is designated critical habitat for the species. NOAA explained that adult Upper Columbia River steelhead are known to spawn near th e intake and discharge structures and juveniles inhabit this area. Although the Columbia Generating Station uses a closed-cycle cooling system that withdraw s 98% less water than comparable once-through systems, NOAA concluded that even this limited intake was likel y to adversely affect listed

27 In addition to the resources discuss ed below, Commenters provide two mo re general exhibits. The first is a Sierra Club report entitled Giant Fish Blenders: How Power Plants Kill Fish & Damage Our Waterways , which includes citations to data and studies on impacts to threatened and endangered species. This includes evidence of direct harm to listed speci es including: Gulf sturgeon; Alabama shad; saltmarch topminnow; mangrove rivulus; green, Kemp’s Ridley, lo ggerhead and leatherback sea turtles in the Gulf of Mexico; shortnose sturgeon in the Hudson River; three species of endangered turtles in New York harbor; and a number of listed species in California coastal waters, for example the impingement and entrainment at the Pittsburg and Contra Costa plants in the San Francisco Bay Delta of more than 300,000 listed fish per year, including Sacremento splittail, chinook salmon, steelhead trout, Delta smelt and Longfin smelt. The study also notes the indirect harms to species that are dependent on healthy populations of fish that are subject to impingement and entrainment. The report describes how power plant intake structures harm these species and al so names 17 power plants with one-through cooling systems. Second, Commenters provide a table of representative Coal-Fired Power Plants using OnceThrough Cooling with Endangered Species Impacts , with plant name, state, water body, daily intake capacity, and the identities of listed species living in the water body that are likely threatened with impingement or entrainment, and in a few cases, records of harm to listed species from these power plants.

28 Attached to this comment letter are the followi ng three documents: (1) Letter from the United States Department of Commerce, National Oceanic and Atmo spheric Administration, National Marine Fisheries Service, to U.S. Environmental Protection Agen cy, Region 10, re: Columbia Generating Station – NPDES permit renewal by State of Washington, da ted May 7, 2012; (2) Letter from the United States Department of Commerce, National Oceanic and Atmo spheric Administration, National Marine Fisheries Service, to U.S. Nuclear Regulatory Commission, re: Columbia Generating St ation, Consultation No. I/NWR/2011/05286, dated June 11, 2012; and (3) Memo randum from Briana Balsam, Biologist, Office of Nuclear Reactor Regulation to Jeremy J. Susco, Acting Chief , Office of Nuclear Reactor Regulation, re:

Conclusion of Informal Section 7 Consultation with U.S. Fish and Wildlife Service of Columbia Generating Station and Section 7 Consul tation Report, dated June 13, 2012.22 species by killing fry; therefor e, it requested formal consu ltation. Since once-through cooling systems kill approximately 50 times as many fi sh, it follows that NOAA’s concerns would be fifty times more significant at a comparable plant with a once-through cooling system. Although EPA’s consultants reviewed the Colu mbia Generating Station’s NPDES permit in preparing the BE, they did not look beyond it to a ny other cooling water in takes on the Columbia

River.

b. Impingement and Entrainment of Atlan tic Sturgeon in the Delaware River

On the East Coast, power plants have docum ented the repeated killing of both shortnose and Atlantic sturgeon in the last ten years. The continued existence of the recently-listed Atlantic sturgeon, in particular the Delaware River Atlantic sturgeon, a genetically unique component of the New York Bight Distinct Population Segment (DPS), is potentially jeopardized by continuing operation of once- through cooling systems on the Delaware.

With respect to Atlantic stur geon, we respectfully direct th e Services’ attention to the

comment letters sent to NOAA Fisheries by the Delaware Ri verkeeper Network, dated April 6,

2012 29 and June 12, 2012 30 , highlighting the need for immediat e designation of critical habitat in the Delaware River and commenting on the Secti on 7 consultation on the U.S. Army Corps of Engineers’ planned dredging of the Delaware River main channe l (the “Deepening Project”). We also respectfully direct the Services’ atte ntion to the July 19, 2013 comments of the Natural Resources Defense Council regarding NMFS’ rece nt draft “batched” BiOp for a number of

Atlantic fisheries. 31 NRDC’s comments, and the attached expert reports, identified significant concerns about the validity of NMFS’ most r ecent estimates of Atlantic sturgeon abundance throughout their range. Because the studies cited in and attached to NRDC’s and the Delaware Riverkeeper Network’s comments are already in NOAA’s possession, we do not append them now. The Services’ obligation to use the best available commercial and scientific data necessarily includes studies and comments su bmitted to the Services during previous

consultations.

29 See attached letter from DRN to NOAA re Endangere d Species Act Section 7 Consultation Biological Opinion -- re Critical Habitat Designation, ESA Sec tion 7 Consultation on the Deepening Project, and Monitoring on the Atlantic Sturgeon in the Delaware Ri ver, dated April 6, 2012, at 1-2 (hereinafter “DRN April 2012 Letter”).

30 See attached Letter from DRN to NOAA re ESA Section 7 Consultation on the Deepening Project’s Effects on Atlantic Sturgeon and Shortnose Sturge on in the Delaware River, dated June 12, 2012.

31 See Comment Letter from NRDC to NOAA re Enda ngered Species Act Section 7 Consultation Biological Opinion -- Endangered Species Act Section 7 Consultation on the Continued Implementation of Management Measures for the Northeast Multispeci es, Monkfish, Spiny Dogfish, Atlantic Bluefish, Northeast Skate Complex, Mackerel/Squid/Butte rfish, and Summer Flounder/Scup/Black Sea Bass Fisheries [Consultation No. F/NER/2012/01956], dated July 19, 2013.23 We also direct the Services to the recent NMFS BiOp for the killing of shortnose and Atlantic sturgeon at the I ndian Point nuclear generati ng station on the Hudson River. 32 In that opinion, NMFS found that even with protective m easures and improved monitoring efforts, the Indian Point station on the Hudson is expected and permitted to take 564 shortnose sturgeon and 416 Atlantic sturgeon over the next twenty years. The opinion also is notable for purposes of

this consultation because it demonstrates cons ideration of both climate change and thermal discharge impacts at a level that EPA could have performed, even if only on a case study basis, but did not perform.

As Delaware Riverkeeper Network noted in its 2012 letters, the status of the Delaware River Atlantic sturgeon is “extremely precarious ” for a number of reas ons, beginning with the fact that while “there were once 180,000 spawni ng female Atlantic sturgeon in the Delaware River[,] NMFS’ latest population estimate based on fisheries bycatch data is that there is a mean of 87 spawning adult Atlantic sturgeon annually in the Delaware River.” DRN April 2012 Letter at 1-2. Of these few remaining adults:

[T]he best available scientific and commercial data recently released by NMFS demonstrat[e] a 38% intercept rate for Atlant ic sturgeon in Northeast fisheries with an average mortality rate of 20% in sink gi llnets (27% in monkfis h fisheries) and 5%

in otter trawls.

DRN April 2012 Letter at 5.

This dire context makes it all the more significant that “the open water intake cooling systems at Hope Creek Generating Station and the Salem Nuclear Generating Stations on the Delaware River . . . are likely to result in the impingement and entrainment of various life stages of Atlantic sturgeon. PSEG Nuclear, LLC found a dead Atlantic sturgeon on the Salem facility’s

intake structure trash bars on March 18, 2011.” DRN April 2012 Le tter at 6. Again in March and July of 2013, PSEG filed reports with the Nuclear Regulatory Comm ission indicating that the Salem power plant impinged at least one ju venile shortnose sturgeon and one juvenile Atlantic sturgeon. 33 Sturgeon may also be impinged a nd entrained at the Delaware City Refinery’s cooling water intake, on th e Delaware side of the estuary.

The Mercer power plant has also killed both species of sturgeon through impingement and entrainment. According to the Delaware River Basin Priority Conservation Areas and

32 See NMFS, NOAA, Dept. of Commerce, Biological Opinion for Continued Operations of Indian Point Nuclear Generating Unit Nos. 2 and 3 (Jan. 30, 2013).

33 See attached Letter from PSEG Nuclear LLC to U.S. Nuclear Regulatory Commission, re: Report of Impingement of Atlantic Sturgeon; Salem Generating Station Unit No. 1; Docket No. 50-272, dated March 29, 2013 and Letter from PSEG Nuclear LLC to U.S. Nuclear Regulatory Commission, re: Report of Impingement of Shortnose Sturgeon; Salem Gene rating Station Unit No. 1; Docket No. 50-272, dated August 1, 2013.24 Recommended Conservation Strate gies Final Report, prepared by The Nature Conservancy, the Partnership for the Delaware Estuary and the Na tural Lands Trust, the area of the Delaware

River in which Mercer’s intakes are located is li kely spawning habitat for Atlantic sturgeon and juvenile overwintering hab itat for shortnose sturgeon. 34 In fact, according to a report submitted by PSEG (owner of the Mercer plant) to th e New Jersey Department of Environmental Protection, the intake system at Mercer has kill ed shortnose sturgeon in the past (without an incidental take permit) and is estimated to ki ll eight juvenile Atlantic sturgeon annually (also unpermitted take). By comparison, in its July 2012 final BiOp for the Army Corps’ Deepening Project, NMFS authorized the inci dental take of only 9 Atlantic sturgeon over the 15 year period of dredging and annual maintenance. 35 Mercer impinges nearly this many Atlantic sturgeon in a

year.

Notably, not one of the published peer-reviewed studies provided to NOAA and listed in the DRN April 2012 Letter bibli ography provided by Delaware Ri verkeeper Network was cited by EPA in its Biological Evaluation. The peer-reviewed literature is, obviously, available data.

Nor did EPA provide any of the reports referenc ed in the attached letters from Delaware Riverkeeper Network that were developed by th e New Jersey Department of Environmental Protection or the Delaware Department of Natu ral Resources and Environmental Conservation. In fact, from the face of the Biological Evaluati on, it appears that EPA did not make any kind of systematic effort to reach out to colleagues in state government about the impacts of cooling water intakes on threatened and endangered spec ies and their habitats. Yet state agencies directly regulate the overwhelming majority of the cooling water inta kes affected by EPA’s pending rule and protect habitat in the vicinity of the intakes, a nd thus are more likely than EPA to possess information about harm to listed spec ies. Thus, it appears that EPA is not taking seriously its duty to provide the Services with the best availabl e data. The commenters urge the

Services to contact state environmental a nd wildlife protection agencies directly. 36

34 See The Nature Conservancy, the Partnership for th e Delaware Estuary and the Natural Lands Trust, “Delaware River Basin Priority Conservation Areas and Recommended Conservation Strategies Final Report,” Appendix II: Diadromous Fi sh Habitat Maps, November 2011.

35 See attached National Marine Fisheries Service E ndangered Species Act Biological Opinion, by Army Corpos of Engineers (ACOE), Philadelphia District, dated July 11, 2012, Considering Deepening of the Delaware River Federal Naviga tion Channel (Reinitiation).

36 A few examples of records of power plant take that are available to EPA (and the Services) and that EPA (or if it fails to do so, the Services) must gather and consider before a BiOp can issue are: 1) records accumulated pursuant to incidental take permits i ssued by NOAA to seven California power plants in 2008 ( see NOAA, “Taking and Importing of Endangered Species; Taking of Sea Turtles Incidental to Power Plant Operations,” 73 Fed. Reg. 19826 (April 11, 2008); 2) records from the Crystal River Energy Complex, a plant for which NMFS consulted in 1999 and issued a BiOp and instructions on record keeping to monitor take of sea turtles; and 3) reco rds from at least the following NPDES permits for coal fired power plants with once-through cooling syst ems that include impingement and entrainment monitoring requirements for listed species to be perfo rmed by the permittee and/or states: Morgantown GenOn in Maryland; Big Cajun II in Louisiana (pallid sturgeon); Nine Mile Entergy plant in Louisiana25 At the current level of fishery bycatch, vessel strikes, and continued operation of cooling water intakes, the loss of the geneti cally unique Delaware River component of the New York Bight DPS of Atlantic sturgeon is very possible. And this is before the cumulative impacts of climate change and new dredging in the Delaware are taken into account. With fewer than 100 breeding adults in the river every y ear, every single fish

counts. The loss of the Delaware River population would jeopardize the entire DPS. 37
The best available data show that the loss of j uvenile sturgeon at cool ing water intakes in the Delaware River, notably the intakes of the Merc er and Salem generating stations, is a serious blow to an irreplaceable population of endangered Atlantic sturgeon.

c. Taking of Endangered Sea Turtles in Florida: the St. Lucie Nuclear Plant Case Study

As a power plant that kills five separate sp ecies of endangered sea turtles, the St. Lucie nuclear plant provides a powerful example of the ha rm that cooling water intakes cause to listed species. But it is also an object lesson in the failures of case-by-c ase regulatory efforts to protect listed species, whether under Section 316(b) of the Clean Water Act or Section 10 of the Endangered Species Act. 38

Florida Power and Light’s (FPL) St. Lucie nuc lear power plant began operation of Unit 1 in 1976 and Unit 2 in 1983. The plant is on Hutchins on Island, about eight miles southeast of Ft. Pierce, Florida. For twenty years, no biologi cal opinion governed the oper ation of this cooling system and its effects on sea turtles. 39 It appears that the Nu clear Regulatory Commission (“NRC”) only initiated formal c onsultation after it determined th at an increasing number of sea turtles were being captured and killed at the St . Lucie plant and there was no allowance for such

take. 40

(pallid sturgeon); New Madrid, Missouri; Bridgeport Energy Facility, Connecticut (sturgeon), and the Monroe plant in Michigan.

37 See NOAA, Endangered and Threatened Wildlife and Plants ; Threatened and Endangered Status for Distinct Population Segments of Atla ntic Sturgeon in the Northeast Region , Final Rule, 77 Fed. Reg. 5880, 5883 (Feb. 6, 2012).

38 The documents referred to in this discussion of the St . Lucie plant are attached to this comment letter.

39 Cover letter from United States Nuclear Regulatory Commission to Florida Power and Light Company, re: Biological Opinion, St. Lucie Plant, Units 1 and 2 (TAC NOS. MA6374 and MA6375), dated May 18, 2001, attaching National Marine Fisheries Service, National Oceanic and Atmospheric Administration, United States Department of Commerce, “Biological Op inion” re: the St. Lucie Nuclear Power Plant, at 1-2 (“NMFS Biological Opinion on St. Lucie Plant”).

40 Id . at 2.26 NMFS issued a BiOp in 1997, but NRC and NMFS reinitiated formal consultation shortly thereafter, in 1999, 41 and again in 2006, 42 in both cases because incidental take limits were exceeded, and in 2005 when an endangered small- tooth sawfish was found in the intake canal. 43

In fact, consultation has been ongoing between NMFS and the NRC since 2007 and a new BiOp is expected soon. 44

For all this consultation, NMFS’ involvement has not effectively reduced the risks to endangered sea turtles from the St. Lucie cooling water intakes. A total of 6,576 turtles of all five listed species were removed from the St. Lucie intake cana l during the 23-year period from

1976-1999. 45 Yet in the subsequent 12 years, from 2001-2013, a total of 8,198 turtles were captured, including 67 injuries/mortalities. 46 After the deaths of hundr eds of sea turtles at the FPL plant, including fifteen years of take sin ce NMFS first got involved, FPL now purports to be “developing a plan to install turtle exclude r grating at the offshore intake structures.” 47

There are also serious questions about the ad equacy of monitoring and reporting of take at St. Lucie and at other power pl ants. The ESA requires that incidental take statements establish clear triggers for subsequent c onsultation if there is a risk of jeopardizing the species. See Miccosukee Tribe of Indians v. United States , 566 F.3d 1257, 1271-72 (11th Ci r. 2009) (citing 50 C.F.R. § 402.14(i)(4)). Further, action agencies must report on “the progre ss of the action and its impact on the species to the Service.” 48 But at St. Lucie, while it appears that mortality reports are sent to the NRC (and presumably are forwar ded to NMFS), it is unclear whether reports on the monthly non-lethal entrainment and impingement of sea turtles are also forwarded to the

NRC and NMFS. And a 2009 Government Account ability Office report concluded that the

extent to which the Services require ongoing monitoring in BiOp s varies from action to action, that the consistency with which the Services track monitoring reports varies from field office to field office, and that the Services lack complete monitoring information for many of their formal

consultations. 49 Clearly, this system exhibits pote ntial for communicatio n breakdown between the applicant, the State, any federa l action agency, and the Services.

41 Id. at 2-3.

42 NRC, “Biological Assessment, St. Lucie Nuclear Po wer Plant Units 1 and 2, Reinitiation of Section 7 Consultation to Include Sea Turtles” (August 2007).

43 See Letter from Frank Gillespie, NRC, to David Bernhart, NOAA, (Feb. 24, 2006).

44 FPL St. Lucie Plant Annual Environmental Operating Report, at 18 (2012).

45 NMFS Biological Opinion on St. Luci e Plant, Units 1 and 2, at 6.

46 FPL Marine Turtle Removal Monthly Summary (August 2013)

47 FPL St. Lucie Plant Annual Environmental Operating Report, at 18 (2012).

48 50 C.F.R. § 402.14(i)(3).

49 U.S. Gov’t Accountability Office, Endangered Species Act: The U.S. Fish & Wildlife Service Has Incomplete Information About Effects on Listed Species From Section 7 Consultations, GAO-09-550 (2009).27 The poor implementation, inadequate monito ring, lengthy delays, and above all, the decades long failure to actually reduce harm to turt les at the St. Lucie plant, all indicate that the Services cannot be reasonably cert ain that the listed species protection efforts at this one plant are effective. And St. Lucie is in that minority of plants that are direct ly regulated by a federal agency and submit monitoring reports that are av ailable to NMFS. Under EPA’s proposed rule, the situation at state-regulated facilities wi ll be worse, and harder to monitor.

The Services and EPA “may not rely on plan s for future actions to reduce threats and protect a species.” Or. Natural Resources Council v. Daley , 6 F. Supp. 2d 1139, 1154 (D. Or. 1998). The agencies should be “reasonably certai n” that promised future actions will occur before concluding that a threaten ed species is not jeopardized. Northwest Envtl. Advocates v.

EPA , 268 F. Supp. 2d 1255, 1273 (D. Or. 2003). Neith er the Services nor EPA can be reasonably certain that a roll out of endangered species protections one cooling water intake at a time under EPA’s proposed rule, at facilities regulated by states, will actually occur. And even if listed species protections are put in place through case-by-case deci sions, as EPA envisions, this scheme is not reasonably certain to control the killing of listed species or avoid damaging their habitat. The example of the St. Lucie plant st rongly suggests that the Services cannot have reasonable confidence that EPA’s pr oposed rule will achieve even th e small reductions in take of listed species that EPA projects.

d. Thermal Discharge Causing Widespread Adverse Habitat Modification

EPA also failed to present the Services with readily available data about the extent to which existing cooling water intake s discharge thermal loads that adversely modify the habitats of hundreds of listed species. 50 In the Biological Evaluation, EP A catalogued all of the reasons that temperature is considered a “master environmental variable for aquatic ecosystems” and the many ways in which it may adversely affect e ndangered species and their habitats (BE p.70-71), but never attempted to quantify the impacts of thermal discharge on habitats and never considered or attempted to evaluate the impact of thermal discharges on specific habitats or species. Even a cursory review shows that EPA has ignored readily avai lable information about the specific harms to listed species and th eir habitats caused by thermal discharges.

For example, Madden et al . (2013) reviewed “federal datasets documenting water temperature at intakes and discharg es from power plants during th e summer in the United States

between 1996 and 2005.” 51 They point out that, since 1974, the Energy Information

50 “Significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering” constitutes the taking of endangered species. 50 C.F.R. § 222.102.

51 N. Madden, A. Lewis and M. Davis, “Thermal e ffluent from the power sector: an analysis of oncethrough cooling system impacts on surface water temper ature,” 8 Environ. Res. Lett., Article ID 035006, at 2 (2013).28 Administration has compiled systematic record s of water withdrawals, discharges, and temperatures from power plants using once-thro ugh cooling systems, which make up the bulk of the regulated universe by volume under Section 316( b). They also identify other sources of information on once-through cooling system thermal discharges to make up for deficiencies in the EIA database. Using an approach similar to the one that EPA used to identify overlaps between endangered species and co oling systems generally, Madden et al . used the presence of high numbers of endangered species as a proxy fo r biodiversity to focus their analysis on 33 watersheds where very high aqua tic biodiversity (more than 10 im periled species) overlap with high thermal discharges. See Madden et al . at 3 and Figure 2, at 5. The authors then examined the Upper Catawba watershed in North and South Ca rolina as an example of one such watershed. The found that all five power plants in the U pper Catawba “reported discharging water that

exceeded state limits on ∆ T and maximum discharge temperatures during the summer (figure 3). However, their NPDES permits revealed that a ll five power plants had been granted thermal

variances that allowed them to exceed state water quality limits[.]” Madden et al . at 5. EPA is currently reviewing two of these permits directly, but the wider poi nt is clear: EPA’s rule will continue the operation of cooling water intakes that are poorly regulated at the state level and are located in watersheds where they are likely to impinge, entrain, and adversely modify the habitat of listed species. EPA could use a technique li ke this to focus on high priority watersheds.

Note that EPA provided no information to th e Services about the Catawba watershed. But EPA’s direct review of permits in the wa tershed, coupled with th e fact that thermal discharges into the Catawba were linked to mass die-offs of striped bass in 2004, 2005, and 2010, 52 strongly suggest the potential for direct or indirect eff ects on listed species living in various reaches of the Catawba, including diffe rent sturgeon and freshwater mussel species.

The Union of Concerned Scientists and i ndependent scientists from a number of governmental and academic laboratories have fo rmed a collaboration cal led “Energy and Water in a Warming World” (EW3), which has also cl osely examined existing water withdrawal and thermal discharge data. At the outset, it is wo rth noting that EW3 identified major inaccuracies in the Energy Information Administration data on water withdrawals that EPA has based part of its own regulatory analyses upon. The problems vary from the unfortunate, such as power plants reporting estimated rather than measured values , to the egregious: “201 freshwater-cooled coal and natural gas plants nominally reported water use to the EIA but claimed to withdraw and consume no water at all (Figure 8). Such reporting is obviously in error: these plants could not

run without water.” EW3 at 21. Based on thei r size and operations, EW3 estimates that this “mistake” leads to unreported withdrawals of 1.1 trillion to 2.6 trillion gallons. See EW3 at 22.

EW3 also identified 350 power plants that discharge wastewater at peak summer temperatures exceeding 90 degrees Fahrenheit, a nd singled out power plants in the upper Dan

52 See A Report of the Energy and Water in a Warming World Initiative “Freshwater Use by U.S. Power Plants; Electricity’s Thirst for a Precious Resource” November 2011, at 29, available at www.ucsusa.org/publications (hereinafter “EW3”).29 River of North Carolina and Virginia for p eak summertime discharges exceeding 110 degrees Fahrenheit, a temperature that is generally lethal to wildlife and far in excess of most state

standards. See EW3 at 27-29. The Dan River is home to rare and endangered freshwater fish and mussels, including the James spinymussel.

In its 2011 publication, “Freshwater Use by U.S. Power Plants; Electricity’s Thirst for a Precious Resource,” EW3 compiled a record of ther mal discharges from power plants that have caused and have potential to cause si gnificant harm to aquatic organisms:

 In the summer of 2010, Tennessee River water temperatures rose above 90°F, forcing the Browns Ferry nuclear plant in Athens, AL, to drastically cut its output for nearly five consecutive weeks in order to meet water qual ity standards. A similar event occurred in August of 2007 and 2011.

 Until Georgia Power retrofitted the Plant Har llee Branch coal-fired power plant on the Lake Sinclair reservoir on Georgia’s Oconee River with a cooling tower in 2002,

extensive fish die-offs had been common.

 In August 2007, the Riverbend and G.G. Allen coal plants discharg ed cooling water in excess of water quality based effluent limits designed to protect fish in North Carolina’s Catawba River. The plants were forced to cut back power generation in an effort to comply with these limits.

 In 2006, Quad Cities Reactors near Cordova , Illinois reduced power output because thermal discharges exceeded water quality based effluent limits. In 2012, the plant’s owners sought a 316(a) vari ance to increase th e temperature of their discharge.

 In summer 2012, the Braidwood Nuclear Plant, in Illinois, raised the temperature of its receiving water body to 102°F.

 Throughout 2012, the E.D. Edwards plant, also in Illinois, required a special variance to continue operating because it could not comply with extant thermal limits designed to protect aquatic organisms.

 The Joliet, Will County, and LaSalle power plants , also in Illinois, needed similar thermal variance throughout the summer of 2012 (in the case of LaSalle, the variance was required from March).

 In the summer of 2012, the Cumberland and Galla tin coal plants in Tennessee both had to curtail operations in order to meet thermal discharge limits set to protect the Cumberland

River.30  The Dresden nuclear plant in Illinois ex ceeded thermal limits set to protect the DesPlaines and Kankakee Rivers in 2012 (and later received a pr ovisional variance to these limits).

 To avoid violating thermal limits, the Mon ticello nuclear plant in Minnesota reduced power output throughout August 2006 and August 2010.

To overcome the gaps in current temperature data sets, scientists have also developed thermal exchange models for evaluating the inter actions between power plant discharges and the environment that allow for a more systematic assessment of the effects of EPA’s decision to allow continued operations of once- through cooling systems. Miara et al . (2013) describe “a simulation model of power plan t operations, the Thermoelectric Power and Thermal Pollution Model (TP2M)” that “simulates the operations of contemporar y and emerging power plants according to climate and hydrology conditions, engi neering requirements, electricity demand and environmental regulation,” and is “coupled to a regional biogeophysical model, the Framework for Aquatic Modeling in the Earth System (FrAME S) . . . a spatially distributed hydrology model with gridded river networks (3 min) that simula te transport, mixing and re-equilibration of water temperatures along river reaches at a daily time step” in order to “quantify, in high-resolution, regional patterns of thermal pollu tion, electricity generation on a single power plant and regional scale, river temperatures and pow er plant efficiency losses associ ated with changes in available cooling water that incorporates climate, hydrology, river network dynamics and multi-plant impacts.” 53

This kind of modeling analysis could assist th e Services in trying to quantify and estimate the effects on various aquatic habitats of the thermal discharges from hundreds of once-through cooling systems that will continue to operate under EPA’s rule. EPA should have run such models for itself, or sought th e assistance of these or similar modelers. Notably, after running different configurations of the model, one of Miara et al .’s findings is that “by significantly reducing the amount of heat input to the river system, conversion to [cooling towers] result in the greatest improvements for aquatic ecosystem indicators.” Miara et al . at 7 (Col. 2).

The Miara et al . study also examines the cumulative effects of a scenario in which the current cooling configuration in the Northeas t remains in place and thermal pollution load

remains similar to current condi tions, combined with the anticipated climate change in the Northeast. The anticipated impacts of clim ate change over the coming decades include “increases in ambient temperatures and precipita tion” and “higher seasonal fluctuation of stream flow” leading to “reduced river discharge in mid- northern latitudes (i.e. No rtheastern US) despite an increase in precipitation. Combined low flow a nd rising temperatures will result in a warming

of rivers.” Id. at 8. The model indicates a greater than 100% increase “in unsuitable habitat for

53 Ariel Miara, Charles J. Vorosmarty, Robert J. St ewart, Wilfred M. Wollheim and Bernice Rosenzweig, “Riverine ecosystem services and the thermoelectri c sector: strategic issues facing the Northeastern United States,” 8 Environ. Res. Lett., Article ID 025017, at 2 (2013).31 fishes with maximum average weekly temperatur e thresholds of 24 C (cold) and 29 C (cool) [in the Northeast].” Id. The study also indicates a similar incr ease in unsuitable ha bitat “for fishes with 34 C (warm) thresholds,” but this could be mitigated by heightened efficiency and enforcing otherwise applicable water quality stan dards on thermal discharges (i.e. ending the use of CWA Section 316(a) variances). Id.

Applying the same models, Stewart et al . (2013) found first that 28.4% of all the heat generated at inland Northeastern thermoelectric plan ts was transferred direc tly to rivers via oncethrough cooling systems (by comparison, the amount of heat converted to electricity was only marginally greater at 34.3%). 54 The following table is adapted from Stewart et al . ( See id. at 4). It quantifies the impact of once- through cooling (“OTC”) waste heat on major river basins in the

Northeast.

Basin Electricity produced

with OTC (TWh/yr) OTC

Heat Input

to
River (PJ/yr) Temp. Increase at River Mouth (deg C) (all generation) Heat attenuated by riverine ecosystem (%) (all generation)

Summer Winter Annual Summer Winter Annual

Atlantic (all rivers) 250.4 1055 1.9 0.9 0.9 11.9 12.9 11.3

Penobscot 1.7 7.6 0.2 0.1 0.1 7.6 22.3 10.5

Merrimack 13.3 25.5 1.0 0.6 0.6 19.1 33.6 22.2

Connecticut 23.4 50.3 0.8 0.4 0.5 20.3 39.6 23.8

Hudson 36.1 252.3 5.0 2.4 2.5 6.4 7.5 6.2

Delaware 12.2 86.7 2.7 0.9 1.1 12.9 11.9 12.5 Susquehanna 33.8 239.7 2.9 1.3 1.5 11.1 11.6 9.7

James 24.5 177.6 8.2 3.1 3.9 21.5 13.9 18.1

These figures clearly show the significant imp acts of all this waste heat. For example,

the Connecticut and Merrimack Rivers absorb and dissipate almost 25% of the heat generated at thermoelectric plants along their banks, meani ng that they continually experience significant warming for much of their length. And the effect upon the estuaries at th e mouths of all these rivers is substantial. In summer time, when many threatened and endangered species approach their thermal tolerance limits and dissolved oxygen impairments in coastal a quatic habitats are at their worst, the Hudson, Delaware, Susquehanna a nd James rivers are all several degrees warmer

54 See Robert J. Stewart, Wilfred M. Wollheim, Ariel Miara, Charles J. Vorosmarty, Balazs Fekete, Richard B. Lammers and Bernice Rosenzweig, “Horiz ontal cooling towers: riverine ecosystem services and the fate of thermoelectric heat in the contemporary Northeast US,” 8 Environ. Res. Lett. , Article ID 025010 at 3 (2013).32 at the mouth than they would otherwise be. 55 The thermal discharges from once-through cooling systems that will continue to operate unde r EPA’s rule contribute to dissolved oxygen impairments that affect dozens (if not hundreds) of listed species a nd their habitats.

The impact of thermal discharges into these ri vers is equivalent in scale to many decades (or in the case of the Hudson and the James Rive rs, more than a century) of anticipated climate change. Put differently, ending this adverse im pact on the habitat of hundreds of listed species would help to buy humanity and these species another 100 years to rec over and adapt to the coming changes in our climate.

Stewart et al . conclude that “[i]n aggregate, OTC plants produce all of the total net

annual heat loads to rivers.” Stewart et al . at 6. The researchers then mapped the dissipation of those heat loads, finding that hund reds of river miles in most of the listed river systems are between 1 and 5 degrees warmer in summer due to these discharges. See Stewart et al . at 6. Effectively, the “thermal plumes” in major Nort heastern rivers take over the whole river for

hundreds of miles.

Stewart et al . also provide EPA with a way to quantify and locate adverse habitat modifications, instead of just giving up. Thei r paper lists 12 common a quatic species and their average weekly temperature tolerance and uses the model results to quantify the number of river kilometers that are rendered unsuitable by discharges from once-through cooling systems regulated by EPA’s rule. Since the model desc ribed in these papers is a gridded network, temperature values are determined for each point in the grid, thus the model provides the exact

locations of the affected reaches in the Northeast. All of the s upporting data and figures for these

studies are available to the Servic es electronically. Even if EPA fails to act on this information, using these modelling techniques and results, and taking the sp ecies discussed in Stewart et al . as proxies for endangered species with similar ther mal tolerances, the Serv ices could quantify and precisely locate the habitats adversely affected by EPA’s d ecision to authorize continued operation of once-through cooling systems.

Again, EPA provided none of this readily available information in its consultation package; it simply threw up its hands and claime d that it was “not possible” to evaluate the impacts of individual facilities whose continued operation will be au thorized by this rule. BE at 37. For most of the species discussed in the BE , EPA simply asserts that “EPA does not have

sufficient data to evaluate to what extent these species have also been affected by environmental

alterations or indirect effects of exis ting CWIS and associated discharges.” See BE at 41-53. EPA repeated this claim with respect to all list ed cranes and storks, ma rine birds, shorebirds, waterfowl, Everglade Snail Kite, all of the eighty three listed species of cl ams, as well as corals,

55 Note, however, that the model does not account for tida l dilution, which is an important variable in the Hudson, Delaware, and James rivers.33 Atlantic salmon, logperch, multiple minnow sp ecies, Pacific eulachon, Smalltooth sawfish, 56
Tidewater goby, Unarmored threespine sticklebac k, Pacific salmonids, rockfish species, seven sturgeon species, three sucker species, six West ern trout species, whales, pinnipeds, manatees, sea otters, endangered species of sea turtles, and fifteen species of freshwater snails. Despite EPA’s obvious lack of diligence in seeking out the best available information about these species, the fact is that the Se rvices can obtain a great deal of information about these species with only a modicum of effort. It falls to the Services to obtai n these data and analyze them on its own, or to extend the consultation period and refuse to issue a BiOp until EPA fulfills its statutory duty to provide th e best available information for the Services’ review.

e. Invasive Species in Thermal Plumes

Another area in which EPA failed to provide th e best available data to the Services is with respect to the role of th ese thermal plumes in sheltering and promoting the growth of invasive species that harm thr eatened and endangered native species. EPA notes correctly that invasive species are a stressor affecting listed spec ies and that “[t]hermal discharges from 316(b) facilities may extend the seasonal duration of non-resident organism s, allowing transient summer species to become permanently established in geographic areas beyond thei r historical range.” But EPA provides only the example of incr eased abundance and overwintering of “the predacious ctenophore Mneimiopsis leidyi ” in Mount Hope Bay, Massachusetts. This comb jelly

is a seasonal resident native to the Atlantic coast. EPA’s observation downplays the seriousness of this problem.

EPA failed to inform the Services of a far more worrying development: in recent years,

scientists have documented the role of thermal plumes as protective niches for Asian clams ( Corbicula fluminea ) and quagga mussels ( Dreissena bugensis ), two highly inva sive species that

threaten dozens of listed freshwater bivalves in waterbodies already affect ed by large, regulated cooling water intakes (including wa terbodies designated as critical habitat for bivalves). More than a decade ago, Mitchell et al . (1996) found that quagga mussels are present in abnormally high concentrations in areas a ffected by the thermal discharge plume of a power station and posited that, by decreasing the severi ty of wintertime low temperatur es, thermal plumes create an opening for these invasives to establish and spread. 57 Thermal plumes were also the launching point for an Asian clam inva sion of the Connecticut River. 58

56 Charlotte Harbor, Florida is in the National Estu ary Program and is designated critical habitat for the

smalltooth sawfish.

57 Jeremy S. Mitchell, Robert C. Bailey, and Rich ard W. Knapton, “Abundance of Dreissena polymorpha and Dreissena bugensis in a warmwater plume: effects of depth and temperature,” 53 Can. J. Fish. Aquat.

Sci. 1705, 1710 (1996).

58 See D.E. Morgan, M. Keser, and J.T. Swenarton, “Population dynamics of the Asiatic clam, Corbicula fluminea (Muller) in the Lower Connecticut River: Establishing a foothold in New England,” 22 J. of Shellfish Research 193-203 (2003).34 Last year, Simard et al . (2012) found that the thermal pl ume of the Gentilly-2 nuclear power plant in Quebec, on the north short of the St. Lawrence River, now provides a stable winter home for a population of invasive Asian clams. 59 With this discovery, the Asian clam has extended its northern boundary to incl ude the entire United States.

These scientific studies, and others like them, 60 are readily available to the Services. Their findings should be reviewed and considered by EPA and the Services as they evaluate whether continued operation of existing once-through c ooling systems jeopardizes the continued existence of numerous species of freshwater biva lves and/or adversely m odifies their critical

habitats. EPA did not include these or sim ilar studies in its bibliography for the BE.

f. Connecticut River – Mount Tom Gene rating Station Biological Assessment

The most egregious example of EPA’s failure to provide the be st available data is EPA’s failure to discuss information that is obviously in its possession, such as EPA Region 1’s 2012 Biological Assessment for reissu ance of a NPDES permit to the Mount Tom Generating Station,

located on the Connecticut River. 61 Because it is in the non-delegated state of Massachusetts, Mount Tom is one of the few NPDES permitted facili ties that EPA actually re gulates directly. In preparing a Biological Assessmen t, although Region 1 focused on th e portion of the Connecticut River near Holyoke, Massachusetts, the agency co mpiled a great deal of information that would be beneficial to the Services in determining th e effects of EPA’s rule throughout the length of the

river.

The Biological Assessment for Mount Tom contains relevant information about

conditions in the Connecticut Rive r, including average seasonal flows and temperatures, habitat quality, and a host of water quality indicators, as well as inform ation about the species found in the area. Among other highly rele vant facts, the Biological Asse ssment states that the population of shortnose sturgeon in the Conn ecticut River appears to be stab le at around 1000 fish (orders of magnitude below historic levels), and is divi ded into two breeding popul ations above and below the Holyoke Dam. The Assessment also provid es important information about the breeding success of these fish, for example, the presence of high numbers of reproductive organ tumors that may have a negative effect on fecundity and are believed to be associated with PAH

contamination in the Connecticut River. Fina lly, the Assessment reviews multiple stressors on sturgeon throughout the Connecticut River and concludes that conti nued operation of the cooling

59 See M. Anouk Simard, Annie Paquet, Charles Jutr as, Yves Robitaille, Pierre U. Blier, Réhaume Courtois and André L. Martel, “North American range extension of the invasive Asian clam in a St. Lawrence River power station thermal plume,” 7 Aquatic Invasions 81–89 (2012).

60 E.g., I.C. Rosa, J.L. Pereira, R. Costa, F. Gon calves and R. Prezant, “Effects of upper-limit water temperatures on the dispersal of the Asian clam corbicula fluminea,” PLoS One 7 e46635 (2012).

61 See EPA Region 1, Water Permits Branch, Office of Ecosystem Protection, “Biological Assessment Mount Tom Generating Station National Pollution Di scharge Elimination System Permit Reissuance (Permit No. MA0005339),” dated May 25, 2012.35 water intake at Mount Tom likely will impinge a nd entrain specific numbers of adult, juvenile, and larval shortnose sturgeons at the Mount Tom plant, and theref ore will adversely affect listed organisms, requiring formal consultation with the Services that the Commenters believe is presently ongoing.

EPA could have included information from th is and other water-body specific research, such as EPA’s investigations in the Catawba and Dan River watersheds , noted above. Clearly,

this information would aid the Services in ev aluating the effect of authorizing continued operation of multiple cooling water intakes on th e Connecticut, Catawba, and Dan Rivers. Yet EPA chose to simply state that there was no avai lable information about the effects of intakes on particular waterbodies or sp ecies affected by this rule.

7. The Services cannot reach a no jeopardy finding on the basis supplied by EPA.

Although it is short on specifics, EPA’s Biologi cal Evaluation provide s a great deal of alarming information on the broad trends, risks to listed species and critical habitat, and pervasive environmental damage caused by cooli ng water intakes. As noted above, cooling water intakes regulated u nder this rule affect 215 listed aquati c species and discharge waste heat into 290 designated critical habitats. 62 In addition, EPA points out that:

 “Overall, aquatic species are disproportionate ly imperiled relative to terrestrial species. For example, 39 percent of freshwater and diad romous fish species . . . , 67 percent of freshwater mussels . . . and 48 percent of cray fish . . . are classified as T&E.” BE at 3.

 “Proximity to T&E species and/or designated cr itical habitat (in addi tion to consideration of Essential Fish Habitats) is a documented concern at ma ny power plant facilities.” BE at 3. There is an extremely high degree of overlap between listed species’ habitat and cooling water intakes. See BE at 55-62.

 “For T&E species, I&E from CWISs may re present a substantial portion of annual reproduction. Consequently, I&E may either le ngthen species recove ry time, or hasten the demise of these species much more so than for species that are abundant. For this reason, the population-level and social va lues of T&E losses are likely to be disproportionately higher than the absolute number of lo sses that occur.” BE at 3.

 The available data likely understates threats to listed species becau se regulators do not routinely revisit concerns surrounding threatened and endangered species during relicensing or permitting proceedings. See BE at 4.

62 See BE at 60 and Table 7-1, 83-88. The 290 designated critical habitats overlap each other (i.e. the same habitat is used by multiple species).36  Endangered species are rarely found in impi ngement and entrainment samples because sample sizes are small and by definition liste d species are rare. “T&E species are found at low population densities, and the volu me of water sampled by facility-level impingement and entrainment studies is low. Thus, it is likely that many T&E species suffered IM&E outside of sampling periods and are never recorded.” BE at 63-64. Therefore, the absence of listed species in sa mpling data does not mean they aren’t being killed. If listed species are present in the vi cinity of cooling water intakes, they can be killed periodically even if individuals are not found duri ng rare sampling episodes.

 EPA’s investigation of NPDES permits for faci lities known to overlap with the ranges of multiple endangered species found that none of the permits contained conditions aimed specifically at protection of listed species a nd there was little or no analysis related to listed species at these facilities. See BE at 4.

 “The operation of CWISs and disc harge returns significantly alte r patterns of flow within receiving waters, both in the immediate area of the CWIS intake and discharge pipe, and

in mainstream waterbodies. Flow alteration may be particularly disruptive in inland riverine settings. Flow altera tions can create changes in th e overall aquatic habitat and thus affect T&E species in a number of ways.” BE at 68.

 “Many T&E species are particularly vulnerable to degraded water quality” (BE at 69) and “many aquatic organisms subject to the effect s of cooling water withdrawals reside in impaired (i.e., CWA 303(d) listed) waterbodies. Accordingly, they are potentially more vulnerable to cumulative impacts from ot her anthropogenic stressors.” BE at 65.

Thus EPA’s Biological Evaluation, while va gue, provides a great deal of negative information demonstrating that cooling water in takes may jeopardize the survival and recovery of listed species, or may adversely modify design ated critical habitat. And EPA has failed to provide the kind of site-specific, quantitative data that would be needed to demonstrate that it will comply with its statutory obligation to avoid jeopardy and adve rse modification.

Despite EPA’s failure to provide the best avai lable data, it is ultimately the obligation of the Services to issue comprehensive BiOps that reach a well-reasoned final opinion about whether EPA’s action will jeopardize the continued existence of any species or adversely modify habitat. Under guidance issued by the Services, when faced with pervasive uncertainty and an obligation to complete a BiOp promptly, the Serv ices must “develop the biological opinion with the available information[,] giving the benefit of the doubt to the species.” Handbook at 1-7; s ee also Natural Res. Defense Council v. Kempthorne , 506 F. Supp. 2d 322, 360 (E.D. Cal. 2007) (agency cannot abdicate responsib ilities by characterizing availabl e information as uncertain, in the face of uncertain information Congress inte nded to give benefit of the doubt to the endangered species); Rock Creek Alliance v. U.S. Fish & Wildlife Serv. , 390 F. Supp. 2d 993, 1008, (D. Mont. 2005) (“[A] tie in the evidence shoul d go to the species, especially because of female mortality. FWS must demons trate a rational explanation fo r its conclusions, and given the37 clear possibility that bears are at least not incr easing, contemplating the loss of additional bears

related to the mine is not rational.”), accord Conner v. Burford , 848 F.2d 1441, 1454 (9th Cir. 1988) (requirement to use the best available info rmation must always be met because “to hold otherwise would eviscerate Congress’ intent to give the benefit of the doubt to the species.”).

In the face of so much information about the potential of cooling water intakes to cause harm, so little information to suggest that enda ngered species can contin ue to withstand this harm, and so little effort by EPA to provide the best available data or establish a regulation that positions the agency to closely monitor and control harm to endangered species in the future, the prudent way to give the benefit of the doubt to listed sp ecies is to conclude that EPA’s rule will jeopardize their continued existence.

NMFS’ 2012 Biological Opinion on the U.S. Army Corps of Engineers’ nationwide permit program provides a recent example of this kind of jeopardy finding in the face of poor

information. 63 The Biological Opinion addressed the Ar my Corps’ decision to renew more than 40 nationwide general permits that collectively authorized, every year , tens of thousands of actions that involve dredging, filling, and modifica tion of tens of thousands of acres of aquatic and wetland habitats throughout 45 of the 50 states.

NMFS concluded that the Army Corps’ nationw ide permits – which set up a system of

one-time authorizations with li ttle follow up, notification of pe rmitted activities, and monitoring by the Army Corps – authorized the kinds of activ ities known to cause substantial harm to listed species and left the Corps blind to the impacts its permitting might have and unable to respond to emergent problems:

[T]he U. S. Army Corps of Engineers ha s failed to insure that the Nationwide Permits it proposes to use to authorize activit ies in navigable and other waters of the United States are not likely to jeopardize the continued existence of endangered and threatened species under the jurisdiction of the National Marine Fisheries Service and are not likely to result in the destru ction or adverse modification of critical habitat that has been designated for these species. . . .

[T]he evidence available suggests that th e USACE has not structured its proposed Nationwide Permit Program so that the US ACE is positioned to know or reliably estimate the general and particul ar effects of the activities th at would be authorized . . . and, by extension, be positioned to know or reliably estimate the general and particular effects of those discharges on endangered and threatened species. The USACE also has not structured its proposed Nationwide Permit Program so that it is positioned to take actions that are necessary or sufficient to prevent the activities that

63 NMFS, NOAA, U.S. Dept. of Commerce, National Marine Fisheries Service Endangered Species Consultation Biological Opinion on U.S. Army Corps of Engineers’ Nationwide Permit Program (Feb. 2012).38 would be authorized by the proposed Na tionwide Permits from individually or cumulatively degrading the quality of the waters of the United States that would receive those discharges. It has not structured its proposed Nationwide Permit Program so that the USACE is positioned to insure that endangered or threatened species and designated critical habitat are not likely to be exposed to [harm] . . . [a]nd it has not structured its proposed Nationwid e Permit Program so that the USACE is positioned to insure that endangered or threatened species and designated critical habitat do not suffer adverse consequen ces if they are exposed to [harm].

To satisfy its obligation pursuant to secti on 7(a)(2) of the Endangered Species Act of 1973, as amended, the USACE must place itsel f in a position to (a) monitor the direct, indirect, and cumulative impacts of the activities the proposed Nationwide or General permits would authorize, (b) mon itor the condition of those effects on the

subwatersheds or watersheds in which those activities occur, (c) monitor the consequences of those effects for listed resources under NMFS’ jurisdiction, and (d) take timely and effective corrective actions when the consequences of those actions

exceed measurable standards and criteria. 64

In this rule, EPA is setting itself up in much the same situation: EPA is prepared to authorize the operation of cooling water intakes despite the fact that they cause harms that the agency has not yet managed to assess, and has no future plans to assess. The information provided by EPA is so clearly in adequate that the Services ca nnot reasonably conclude that EPA’s regulation will avoid jeopard izing the continued existence of endangered or threatened species and will avoid destroying or adversely m odifying designated critical habitat. The only appropriate conclusion for a BiOp based on EPA’ s limited data provision is a jeopardy finding like that reached in the Army Corps BiOp.

8. The deadline for EPA to issue a final rule is likely to be extended; the Services should take this opportunity to demand that EPA provide the Best Available Data.

The Services cannot reasonably conclude that EPA’s 316(b) regulations will avoid jeopardy based only on the limited information provided by EPA about the harms to listed species from continued operation of existing cooli ng water intakes. Nor, on this basis, can the Services issue quantified incidental take statements with clear tri ggers for subsequent action. In these circumstances, one option open to the Servic es is to reach a jeopardy conclusion and set forth a reasonable and prudent alternative to EPA’s rule.

But “[w]here significant data gaps exis t,” the Services’ hand book lays out another alternative as well: “if the action agency concurs, extend the due date of the biological opinion until sufficient information is developed for a mo re complete analysis.” Handbook at 1-7. At this stage, gathering and analyzing new information is the only defensible alternative to issuing a

64 Id. at 223-224.39 jeopardy opinion. EPA has not provided the best available data, and the Services cannot issue opinions that are not based on the best available data.

Commenters have demonstrated that EPA has ignored readily available information sources ranging from governme nt reports to thermal modeli ng analyses. The Services’ Handbook explains what is to be done in such cases:

If relevant data are known to be available to the agency or will be available as the result of ongoing or imminent studies, the Se rvices should request those data and any other analyses required by the regulations at 50 CFR §402.14(c), or suggest that consultation be postponed until those data or analyses are available . . . .

Handbook at 1-6.

9. Closed-Cycle Cooling Technology should be the focus of any Reasonable and Prudent Alternative (RPA) analysis or Reasonable and Prudent Measures (RPM) analysis.

Unfortunately, EPA’s Biological Evaluati on did not provide the Services with information on closed-cycle cooling technology. More information about closed-cycle cooling

would assist the Services to se lect Reasonable and Prudent Altern atives in case of a jeopardy finding, and to develop Reasonable and Prudent Measures for inclus ion in an incidental take statement. Again, Commenters seek to a ssist the Services in filling this gap.

Closed-cycle cooling technology provides th e only reasonable and prudent alternative

means for EPA to minimize the adverse environm ental impacts of coo ling water intakes under Section 316(b) of the Clean Water Act.

To that end, we attach to this letter our comments to EPA on its proposed rule as published in 2011. 65 Those comments discussed the use of closed-cycle co oling in detail, including the technical and economic feasibility of a national rule that would require widespread use of cooling towers. Of course, Commenters cannot bridge the data gap left by EPA alone, and encourage the Services to seek additional information.

Widespread adoption of closed-cycle cooli ng in place of once-through cooling intakes is

a valid Reasonable and Pr udent Alternative:

1. closed-cycle cooling is almost certain to avoid jeopardizing endangered species by reducing impingement and entrainment by 98% and eliminating thermal discharges;

2. closed-cycle cooling is consistent with the purposes of EPA’s rule – minimizing the adverse environmental impact of cooling water intakes;

65 August 2011 Comment Letter.40 3. closed-cycle cooling is c onsistent with EPA’s authority – EPA considered such options in developing this rule; and

4. closed-cycle cooling is economically and technologically feasible.

See 50 C.F.R. §402.02 (defining the elements of a Reasonable and Pr udent Alternative).

In developing its cooling water intake ru le, EPA had before it regulatory options – national categorical st andards based on the performance of closed-cycle cooling systems (Options 2 and 3 from the proposed rule) – that would protect the environment at a reasonable cost to industry, create jobs, and cause no significant adverse effect s on the environment, electric reliability, or consumer prices. EPA unlawfully rejected these opti ons in favor of preserving the

status quo. Closed-cycle cooling is a feasible and readily affordable technology. A national, categorical entrainment standard based on that technology could include a narrow safety-valve variance to properly take account of site-specific factors for those plants fundamentally different than the majority.

EPA can and should establish a uniform nati onal standard based on the use of closedcycle cooling technology: EPA de termined that closed-cycle cooling is a best performing technology 66 and that numerous existing faciliti es had retrofitted to closed-cycle. 67 During the rulemaking process, EPA expressed concern that “cl osed-cycle cooling is not practically feasible

in a number of circumstances” that “a re not isolated or insignificant.” 68 But Congress gave EPA the ability to subcategorize regu lated industries and to offer vari ances precisely to address such

concerns. See 33 U.S.C. § 1311(n) (fundamentally different factors variance). And properly crafted variance provisions have been uphe ld under Section 316(b) before. See Riverkeeper, Inc. v. U.S.
EPA, 358 F.3d 174, 193-94 (2d Cir. 2004).

As the attached comments explain more fully, Options 2 and 3 from EPA’s proposed rule, both of which involve c onversion of many existing intakes to closed-cycle systems, are technically and economically feasible . It is technically feasible to set uniform national standards because closed-cycle cooling and other technologie s are available to the industry as a whole and EPA has the ability to issue varian ces in the rare case where it is technically infeasible. As the comments show in detail, the technical issues th at EPA raised in the preamble to the proposed

rule are not serious obstacles to widespread adoption of closed-cycle cooling.

The attached analysis also shows that clos ed-cycle cooling retr ofits are economically feasible – they are well within the economic r each of virtually all re gulated entities. The economic feasibility test under the Endangered Species Act is a test of affordability, not a cost-

66 See 76 Fed. Reg. at 22,203 (col. 3).

67 See 76 Fed. Reg. at 22,204 (col. 1).

68 76 Fed. Reg. at 22,207 (col. 1).41 benefit analysis. The “economically and techno logically feasible” langua ge in the Act does not require an agency to “balance the benefit to the species against the economic and technical burden on the industry before approving an RPA” because this would be inconsistent with the purposes of the ESA. Delta Smelt Consol. Cases v. Salazar , 760 F. Supp. 2d 855, 955 (E.D. Cal. 2010). As the Supreme Court has explained, Co ngress determined that the protection of endangered species is, literally, priceless. See TVA v. Hill , 437 U.S. 153, 184 (1978) (“The plain intent of Congress in enacting this statute was to halt and re verse the trend toward species extinction, whatever the cost. This is reflected not only in the stat ed policies of the Act, but in literally every section of the statute.”).

For these reasons, as explained more fully in the attached comments to EPA, a rule that requires widespread adoption of cl osed-cycle cooling is a reasonable and prude nt alternative to EPA’s preferred option, which jeopard izes the continued ex istence of many species. In fact, it is the only reasonable and pr udent alternative.

10. A closed-cycle cooling rule is the only opti on that allows the services to develop a

defensible incidental take statement.

Better information about closed-cycle cooling is also necessary because, without it, the Services cannot develop valid inci dental take statements. By reducing the take of endangered species and the instances of adve rse habitat modification by more than 98%, the use of closedcycle cooling will bring incidental take of lis ted species down to a level that is actually manageable and quantifiable for the Services.

A BiOp that concludes that a federal action does not violat e Section 7(a)(2) of the ESA

must include an incidental take statement that “s pecifies the impact, i.e., the amount or extent, of such incidental taking on th e species.” 50 C.F.R. 402.14(i); see also 16 U.S.C. § 1536(b)(4). An

incidental take statement must set “a ‘trigger’ for further cons ultation at the point where the

allowed incidental take is exceede d, a point at which there is a ri sk of jeopardizing the species.” Miccosukee Tribe of Indians v. United States , 566 F.3d 1257, 1271-72 (11th Ci r. 2009) (citing 50 C.F.R. § 402.14(i)(4)).

In their handbook on ESA consultations, the Servi ces determined that to set the trigger, incidental take may be quantifie d through the number of individua ls killed or the extent of

habitat disturbed. In either cas e, however, “a specific number . . . or level of disturbance to habitat must be described.” Handbook p. 4-50. Subsequent to issuan ce of the Services’ handbook, the federal courts have repeatedly held that Congress clearly expressed a preference for numerical population counts in incidental take statements and therefore the number of individual animals of a species that may be taken incidentally through a federal action must be specified unless the Services and EPA can establis h that no numerical valu e could be practically

obtained. See Oregon Natural Res. Council v. Allen , 476 F.3d 1031, 1037 (9th Cir. 2007) (invalidating incidental take statement that used habitat markers in place of a number of animals without explaining why determining a num ber of animals was impracticable); Arizona Cattle

Growers’ Ass’n v. United States Fish and Wildlife Service, 273 F.3d 1229, 1250 (9th Cir. 2001)42 (same); Miccosukee Tribe of Indians v. United States , 566 F.3d 1257, 1274 (11th Cir. 2009) (invalidating take statement and di scussing cases in which Services managed to express take in numerical form even for “elusive” species includi ng snakes and sea turtles). Even if a BiOp logically concludes that a fede ral action poses no jeopardy to the continued existence of endangered species, an agency that does not pr ovide the Services with enough data to set

numeric limits in the incidental take statement risks seeing the BiOp vacated. Id.

If EPA hopes that the Servi ces will reach a no jeopardy and no adverse modification conclusion, and hopes to obtain an incidental take statement, th en it should have provided the Services far better information. EPA’s shoddy wo rk creates a heavy burden for the Services.

Blanket statements that there are no better data on the impacts of cooli ng water intakes or the current status of hundreds of endangered spec ies do not build a convi ncing case that it is impractical to specify the amount of incidental take, particularly where Commenters can readily identify better data for particular species. “Mor eover, even where numerical values are improper, an ITS still must contain some surrogate for defi ning the amount or extent of incidental take.”

NRDC v. Evans , 364 F. Supp. 2d 1083, 1136 (N.D. Cal. 2003) (citing Arizona Cattle Growers’

Ass’n v. United States Fi sh and Wildlife Service, 273 F.3d 1229, 1239 (9th Cir. 2001). EPA’s failure to provide information about the extent of habitat needed to preserve endangered species would make even this fallback optio n a difficult one for the Services.

Although Commenters hope to aid the Services in filling the information gap left by EPA, the fact is that EPA’s rule affects hundreds of endangered species in thousands of ecosystems across the United States. The only realis tic way to issue a legally adequate incidental take statement is to first reduce the severity of the rule’s impacts such that the overwhelming majority of facilities no longer pose a serious threat to endangered species. Closed-cycle cooling is likely to reduce the impingement and entrai nment of many endangered species at individual facilities down to single digits or tens, in stead of hundreds or even thousands. And by eliminating the thermal discharge problem, closed -cycle cooling essentially ends the widespread adverse modification of aquatic habitats. The re sidual incidental take will occur at a small enough number of facilities, and will affect a lesser number of speci es, such that the problem of quantifying take can be solved.

11. The BiOp(s) must significantly improve moni toring and reporting of impacts on listed species.

As EPA acknowledges in the Biological Evalua tion, the status quo is abysmal in terms of monitoring and reporting on imp acts to endangered species. See BE at 4-5. Cooling water intakes cause considerable and illegal harm to e ndangered species. This harm is rarely reported and is not subject to any kind of systematic review – not at the watershed, regional, or national level, nor even at a single si te over time. EPA’s review of NPDES permits found little or no consideration of endangered species, and EP A acknowledges that, even under the best of circumstances, endangered species have low populat ion densities and are rarely found in periodic impingement and entrainment sampling.43 Currently even when listed species or species of concern are greatly affected by a cooling water intake, reports may not reach state or federal regulators in a timely manner, or at all. For example, on January 14, 2012, the Palm Beach Post re ported that the cooling water intake at the St. Lucie power plant in Florid a had killed between 50 and 75 Go liath grouper – a long-lived top predator – on a single day in August 2011. The Goliath grouper was for many years a federally listed threatened species, alt hough thanks to a fishing moratorium the Florida population is believed to be recovering and the species was de listed several years ago. The Goliath grouper is still a protected fish in Florida waters. “Alt hough the fish kill occurred in late August, the

Florida Fish and Wildlife Cons ervation Commission, Florida Department of Environmental Protection and U.S. Nuclear Regulatory Commissi on did not learn of the magnitude of the loss until December, sparking concern by officials and outrage by researchers.” 69 From the reporting, it appears that neither the EPA nor the Services were directly informed of this fish kill even six months later, although Commenters hope very much th at the Services were la ter informed of this fish kill by their colleagues in Florida.

This kind of lax reporting envi ronment is unacceptable. It is no surprise that EPA has a hard time locating data on fish kills at cooling water intakes. As a condition of any BiOp(s), the Services should require EPA to dramatically im prove its ability to monitor and report on the status of endangered species. Among many other measures, this should include:

 Develop mandatory standard NPDES permit requireme nts, procedures, and reporting methods for anticipating, evaluating, and reporting take of endangered species;

 Develop monitoring requirements that include surveying fish to find parasitic life stages of endangered bivalves that are attached to the gills or other parts of fish killed by intakes;

 Require the use of hydrophones and other acousti c monitoring equipment near intakes in all rivers in which tagged endangered species are known to be present, in order to better

understand the abundance and behaviors of listed individuals in the ar ea near an intake;

 Create a response capacity at EPA that can rapi dly address reported ta ke of listed species and any situations in which a cooling water intake causes sufficient harm to trigger

review under the terms of an incidental take statement.

With respect to monitoring, however, by far th e most significant ch ange that NMFS can require is to demand that permittees regulat ed under EPA’s rule undertake environmental metagenomic sampling to detect the presence of e ndangered species in or n ear an intake, rather than relying on impingement and entrainment a ssessments conducted once a decade or less.

69 Christine Stapleton, “Nuke Plant Fish Kill Leads to Improved Reporting Procedures,” Palm Beach Post (Jan. 14, 2012), http://www.palmbeachpost.com/news /news/state-regional/nuke-plant-fish-kill-leads-toimproved-reporting-p/nL3C9/.44 EPA admits that current monitoring practices ar e very unlikely to dete ct the presence of endangered species. And even when impingement and entrainment sampling are carried out by experienced biologists, the early lif e stages of listed species (eggs , larvae) are frequently difficult or impossible to distinguish from closely related species and are not reported or are lumped into a single genera.

There is no reason to continue EPA’s de pendence on such limited data. With the dramatic advances in genetics a nd bioinformatics, and with the ra pid and significant decreases in the cost, time, and complexity of shotgun se quencing, chip-based analysis, and related techniques, there has been an explosion in the use of metagenomic sampling. Today, researchers throughout the United States can sample enviro nmental media for genetic markers (or whole genomes) of multiple species at the same time. The National Academy of Sciences has been heavily promoting the use of environmenta l metagenomic analyses for several years. 70 It is quite feasible at this point for any f acility operating a cooling water in take to periodically collect water samples, as well as samples of entrained and impinged biomass, and have them tested to detect DNA sequences unique to listed spec ies known to inhabit the area.

12. As a condition of any BiOp, the Services mu st demand that EPA’s rule ensures that all NPDES permits authorizing operation of a cooling water intake state clearly that permitted facilities must obtain an Incide ntal Take Permit under Section 10 of the ESA if there are listed species or cri tical habitat in the vicinity of the facility that may be adversely affected by its operation.

EPA’s Biological Evaluation repeatedly makes reference to the NPDES permitting process and the possibilities of pr otecting endangered species through that process. As discussed above, the NPDES process does not and cannot excu se EPA from complying with its obligations

under Section 7 of the ESA. Befo re finalizing this rule, EPA, w ith the advice of the Services, must reasonably conclude that its rule is not likely to jeopardize th e survival, recovery, or critical habitat of listed species. But the Endangered Species Act applies not just to EPA and the Services; it extends to private actors too.

Particularly where, as here, the inform ation provided by EPA is so shoddy that it precludes any possibility of serious analysis, EPA cannot abuse the Section 7 consultation process in a way that would insulate future ta ke of listed species or adverse modification of critical habitat from the protecti ons of the Act. EPA must make clear to regulated entities that,

however EPA chooses to fulfill its duties under Sec tion 7 of the Act, nothing in this consultation process can eliminate the strict obligation imposed on i ndustrial facilities by Section 9 of the Act not to take endangered species or harm their habitat.

70 See, e.g. , Committee on Metagenomics: Ch allenges and Functional Appli cations, National Research Council, The New Science of Metagenomics , National Academis Press (2007), available at http://www.nap.edu/catalog. php?record_id=11902.45 Functionally, the way for the Services to accomplis h this is to insist that, as a term or condition of any BiOp, EPA’s rule must be amended to require that all NPDES permits authorizing operation of a cooling water intake include a cl ause stating that:

a. Compliance with a NPDES permit does not ensure compliance with the Endangered Species Act; and, therefore

b. NPDES permitted facilities that take in cooling water or discharge waste head

must obtain an Incidental Take Permit under Section 10 of the ESA if there are listed species or critical habitat in the vicinity of the faci lity, because these species and habitat may be adversely affected by operation of the cooling system.

13. The Services must clarify how they will address the ongoing and rapid listing of hundreds of species and their critical habitats.

The FWS is under judicially enforceable deadlin es to clear hundreds of species from the ESA listing backlog this year and in the comi ng two years. On May 10, 2011, the FWS entered into a Stipulated Settlement Agreement in the case of WildEarth Guardians v. Salazar , in the

United States District Court fo r the District of Columbia; a nd on July 12, 2011, the FWS entered into a Stipulated Settlement Agreement in the case of Center for Biological Diversity v. Salazar

, also in the United States District Court for the District of Columbia. These agreements require FWS to make listing decisions on more than 250 species by certain date s, including listing decisions on more than 150 species by Sept ember 30, 2013. The ESA requires that concurrent critical habitat designations be made on those dates as well. See 16 U.S.C. §1533(a)(3)(A) and (b)(6)(C).

Commenters are concerned that EPA’s inadeq uate BE became outdated as soon as it was printed and that the same will be true of any BiOps that the Services issue for EPA’s proposed

rule in the next few months. In light of the unprecedented, ra pid and ongoing expansion of the number of listed species and thei r critical habitats, EPA and the Services must explain how they intend to review the impacts of EPA’s proposed c ooling water intake regulations on these species

and critical habitats.

14. NMFS has additional responsibilities under the Marine Mammal Protection Act and the Essential Fish Habitat provisions of the Magnuson-Stevens Act.

NMFS’ oversight responsibiliti es with respect to EPA’s regulation of cooling water

intakes are broader than the Section 7 consul tation process. Under the Marine Mammal Protection Act (16 U.S.C. 1361 et seq.), NMFS is responsible for ensuring that marine mammals are not taken through EPA’s action a nd that any impact on them from EPA’s rule is negligible. The Biological Evaluation does not discuss mari ne mammals in a significant manner, although EPA does note generally that more than a dozen listed species of marine mammals may be46 harmed through impingement (sea otters and pi nnipeds), thermal discharge (manatees), and indirectly by cooling wa ter intakes (all of the pr eceeding, plus whales). See BE at 32-33, 50-52.

EPA concluded that it lacks sufficient data to evaluate how marine mammals are affected by cooling water intakes. Without sufficien t data, however, neither EPA nor NMFS can conclude that the impact on these species from regulated cooling wate r intakes is always negligible. The Biological Eval uation discusses circumstances in which cooling water intakes may have an important impact on marine mamma ls. For example, the Biological Evaluation recounts how many groups of West Indian Manatees have become dependent on power plant thermal discharges to provide overwintering habitat in areas outside their hi storic winter range. EPA writes that, “due to the high degree of seasonal exposure to the thermal plume of the power plants and threat of cold shoc k should the power plant go off-line suddenly, it was judged that the manatee would be susceptible to thermal and chemical alterations in their immediate

environment.” BE at 51.

The Commenters are concerned that this inad equate BE constitutes the sum total of EPA and NMFS’s information gathering efforts under the MMPA. We ask that NMFS please clarify how the Biological Evaluation and the ESA Sec tion 7 consultation proc ess relate to NMFS’ oversight responsibilities under the MMPA, and wh at other research and analysis activities NMFS is planning to complete in order to fulfill its MMPA duties.

Similarly, under Section 305 of the Ma gnuson-Stevens Fisheries Act and its implementing regulations, NMFS must “coordinate with and provide information to other Federal agencies to further the conservation an d enhancement of essential fish habitat.” 16 U.S.C. § 1855(b)(1)(D). Corres pondingly, EPA must “consult with the Secretary with respect to any action authorized, funded, or undertaken, or proposed to be authorized, funded, or undertaken, by such agency that may adversel y affect any essential fish habitat.” Id. § 1855 (b)(2). EPA’s regulation governs the continued operation of numerous cooling water intakes

located in essential fish habitats. These intakes kill fish in and dramatically alter the ecosystems

of these habitats.

Like the ESA, the Magnuson-Stevens Act also requires EPA and NMFS to “use the best scientific information available regarding the effects of the action on EFH and the measures that can be taken to avoid, minimize, or offset su ch effects.” 50 C.F.R. § 600.920(d). And EPA is required to provide NMFS with a written assessm ent of the rule’s effects on essential fish

habitat. See id. §600.920(e)(1). But the Biological Evaluati on includes barely any information or analysis related to the endangered species that it is supposed to focus on; it makes no mention at

all of the hundreds of billions of other fish killed by cooling wa ter intakes every year, including the many billions killed in essential fish habita ts. EPA has not provided a written assessment of the impact that its rule will have on these habita ts, on fish populations, or on regulated fisheries. EPA’s Biological Evaluation is not even adequa te to meet its origin al purpose of assessing impacts on listed species ; it certainly cannot doub le as a written assessment of impacts to

essential fish habitat.47 Cooling water intakes have notorious and s ubstantial adverse effects on commercial and

recreational fisheries and essential fish habitat. To take just two examples, the Delaware Estuary in the vicinity of the Salem Nuclear Generating Station is designated essential fish habitat for sixteen species of fish. 71 The Salem Nuclear Generating Stati on withdraws billions of gallons of cooling water from this essential fish habita t every day, killing more than 800 million “age one equivalent” fish – i.e., billions of actu al fish, eggs, and larvae – every year. 72 Similarly, the Hudson River is also designated as essential fish habitat for numerous species. In the 1990s and early 2000s, five power plants on the Hudson Rive r (Indian Point, Bowline, Roseton, Lovett and Danskammer), 73 caused year-class reductions estimated to be as much as 79 percent, depending on fish species. 74 The generators’ 2000 analysis of three of these plants predicted year-class reductions of up to 20 percent for striped bass, 25 percent for bay anchovy, and 43 percent for Atlantic tomcod, even without assumi ng 100 percent entrainment mortality. 75 New York State has concluded that these losses could seriously deplete any reserve or compensatory capacity

needed to survive unfavorable environmental conditions. 76

Because the intakes regulated under EPA’s new rule have such substantial adverse effects, the only appropriate form of essent ial fish habitat consu ltation under the MagnusonStevens Act is expanded consultation. See 50 C.F.R. § 600.920(i). And this expanded

consultation must be initiated at least 90 days prior to a fina l EPA decision on the proposed 316(b) rule. See id. §600.920(i)(4). NMFS makes textual and GIS descriptions of essential fish habitats widely available. As a starting point , EPA should have submitted to NMFS a list of all essential fish habitats overlappi ng regulated intakes and thus aff ected by this rule. Commenters are disappointed that EPA has not taken even this basic first step, yet somehow seeks to conclude

its consultation with NMFS and issue a final rule shortly.

71 U.S. Nuclear Regulatory Commission, Essential Fi sh Habitat Assessment for the Proposed License Renewal for the Salem Nuclear Generating Statio n and Hope Creek Generating Station 16-17 (2011),

available at pbadupws.nrc.gov/docs/ML1103/ML110320664.pdf.

72 Versar, Technical Review and Evaluation of Thermal Effects Studies and Cooling Water Intake Structure Demonstration of Impact for the Salem Nuclear Generating Station at § VI-4 (Revised Final Report) (1989) (reported on an “equi valent adult” basis). Thiry (30) million pounds of bay anchovy and weakfish are lost each year due to entrainment and im pingement at Salem compared to 6.8 million pounds of yearly commercial landings between 1975-1980.

73 The Lovett plant has since closed, Danskammer has announced closure in the near future.

74 67 Fed. Reg. at 17,138, citing John Boreman and Phillip Goodyear, Estimates of Entrainment Mortality for Striped Bass and Other Fish Species Inhabiting the Hudson River Estuary , American Fisheries Society Monograph 4:152-160, 1988

75 Id ., citing Consolidated Edison Company of New York , Draft environmental impact statement for the state pollutant discharge elimination system permits for Bowline Point, Indian Point 2 & 3, and Roseton steam electric generating stations (2000).

76 Id

.48 Please explain how, and on what timeline, NMFS and EPA intend to comply with their respective obligations under the Magnuson-St evens Fishery Act and the Marine Mammal

Protection Act.

15. Request for meeting

The Services’ Section 7 consultation handbook states that the action agency and the

Services should involve other interested parties in discussi ons related to the consultation, including to the development of reasonable and prudent alternatives to the proposed rule and reasonable and prudent measures to mitig ate the impacts of incidental take. See Handbook at 4- 7. Commenters respectfully reque st an opportunity to meet with the Services and EPA to discuss

the issues raised in this letter and our concerns related to this consultation.

16. Conclusion

We hope that the data referred to in this le tter and the attached documents are helpful to

the Services in this consultati on process. Despite the shortcomings of EPA’s submission, it is arbitrary and capricious and not in accordance w ith the Endangered Species Act for the Services to issue or for EPA to rely on a BiOP that doe s not draw on the best av ailable scientific and

commercial data. See, e.g., Conner v. Burford , 848 F.2d 1441, 1454 (9th Cir. 1988). The attached information is just a small sample of the available data that Commenters were able to

assemble on a short timeline and with limited res ources. We hope that this submission assists the Services in delineating the la rge volume of available data that is far better than what EPA provided in its Biological Ev aluation and supporting materials, and we also hope that the

Services are able to establish a research process that collects a nd makes use of that information.

In the absence of better information about the status of hundreds of endangered species affected by intakes, however, the benefit of th e doubt must be given to endangered species. “Congress has spoken in the plainest of words, ma king it abundantly clear that the balance has been struck in favor of affording endangered spec ies the highest of priorities, thereby adopting a policy which it described as ‘institutionalized caution.’” Tennessee Valley Authority v. Hill, 437 U.S. 153, 194 (1978).

Given the volume of information available about the lethal eff ects of cooling water systems on endangered species, the fact that EPA’ s rule will achieve, at best, only a modest reduction in impingement and little or no reductio n in entrainment and thermal discharge, the significant risk that EPA’s rule will in fact in crease both entrainment and thermal discharge, and the lack of any data to sugge st that populations of threat ened and endangered species are recovering despite these impacts, it is difficult to see how the Services can avoid a finding of jeopardy if they insist on issuing a BiOp based on the presently available information. Alternatively, we believe that the Services mu st demand that EPA make a sincere effort to provide the Services with the be st available data about the eff ects of its action and the listed species harmed by it.49 We also hope to hear from you soon with regard to MMPA and Magnuson-Stevens Act compliance and our request to meet with the Serv ices. Thank you for your consideration of these

comments.

Sincerely,

Reed W. Super Edan Rotenberg Alexandra I. Hankovszky

Super Law Group, LLC 131 Varick Street, Suite 1033 New York, New York 10013 (212) 242-2355 reed@superlawgroup.com edan@superlawgroup.com alexandra@superlawgroup.com

Eric E. Huber, Senior Managing Attorney

Sierra Club

1650 38th St. Ste. 102 W Boulder, CO 80301 (303) 449-5595 ext. 101 eric.huber@sierraclub.org

Tim Dillingham, Executive Director American Littoral Society 18 Hartshorne Drive, Suite 1 Highlands, NJ 07732

( 732) 291-0055 tim@littoralsociety.org

Jason Totoiu, General Counsel Everglades Law Center

P.O. Box 2693 Winter Haven, FL 33884 (561) 568-6740 jason@evergladeslaw.org On Behalf of Southern Alliance for Clean Energy50 Phillip Musegaas, Esq., Hudson River Program Director Riverkeeper, Inc.

20 Secor Road Ossining, NY 10562 (914) 478-4501 x224 phillip@riverkeeper.org

Steve Fleischli, Director and Senior Attorney, Water Program

Natural Resources Defense Council 1152 15th Street NW, Suite 300 Washington, DC 20005 (202) 289-6868 sfleischli@nrdc.org

Jacki Lopez, Staff Attorney Center for Biological Diversity

P.O. Box 2155 St. Petersburg, FL 33731 (727) 490-9190 jlopez@biologicaldiversity.org

John Rumpler, Senior Attorney

Environment America 44 Winter Street, 4th Floor Boston, MA 02108 (617) 747-4306 jrumpler@environmentamerica.org

Thomas Cmar, Coal Program Attorney Earthjustice 5042 N. Leavitt St. Apt. 1 Chicago, IL 60625 tcmar@earthjustice.org

Maya van Rossum, the Delaware Riverkeeper Delaware Riverkeeper Network 925 Canal Street, Suite 3701 Bristol, PA 19007 (215) 369-1188 ext. 102 keepermaya@delawareriverkeeper.org51 Deborah A. Mans, Baykeeper & Ex. Dir. NY/NJ Baykeeper

52 W. Front Street Keyport, NJ 07735 (732) 888-9870 ext. 2 debbie@nynjbaykeeper.org

Joe Payne, Casco Baykeeper Friends of Casco Bay

43 Slocum Drive South Portland, Maine 04106 (207) 799-8574 jpayne@cascobay.org

Liz Crosson, Executive Director LA Waterkeeper 120 Broadway, Suite 105, Santa Monica, CA 90401

310-394-6162 liz@smbaykeeper.org

Marc Yaggi, Executive Director Waterkeeper Alliance 17 Battery Place, Suite 1329 New York, NY 10004 (212) 747-0622 ext. 114 myaggi@waterkeeper.org