FINAL ENVIRONMENTAL

IMPACT STATEMENT

By the 

 NEW YORK STATE 

DEPARTMENT OF ENVIRONMENTAL CONSERVATION 

As Lead Agency

Concerning the 

Applications to Renew

NEW YORK 

STATE POLLUTANT DISCHARGE ELIMINATION SYSTEM

(SPDES) PERMITS

For the

ROSETON 1 & 2, BOWLINE 1 & 2

AND INDIAN POINT 2 & 3

STEAM ELECTRIC GENERATING STATIONS, 

ORANGE, ROCKLAND AND WESTCHESTER COUNTIES

HUDSON RIVER POWER PLANTS FEIS

Accepted:

June 25, 2003

Prepared by NYS Department of Environmental Conservation

Contact:

Betty Ann Hughes, NYS DEC, Division of Environmental Permits

625 Broadway, Albany, NY 12233-1750

(518) 402-9167; bahughes@gw.dec.state.ny.us
-iiFinal Environmental Impact Statement

for SPDES Permit Renewals at 

Roseton 1 & 2, Bowline 1 & 2

And Indian Point 2 & 3

Steam Electric Generating Stations

This Final Environmental Impact Statement (FEIS) consists of multiple

sections:

• The fundamental underlying data and studies are contained in the

1999 DEIS, which is incorporated as part of this FEIS. The 1999 DEIS

contains an extended description of the environmental setting, which

is not duplicated in this FEIS.

• An Executive Summary immediately follows the Table of Contents.

• The first section following the Executive Summary of this FEIS is a

discussion of the regulatory setting for and history of the proposed

action which updates and augments the materials in the DEIS. 

• The next section of this FEIS is a table in which all public comments

received by the Department on the DEIS are excerpted and

summarized. A list of all commentors is provided at the end of the

table. The full texts of all comments received by the Department are

included in Appendix F-I. 

• The Department’s responses to public comments complete the FEIS. 

In the interest of responding most effectively to the submitted

comments, Department staff grouped the comments under related

themes and responded to each theme.

• In addition to the public comments, other appendices provide

background reports and reference materials that may not be readily

available to readers.
-iiiFINAL ENVIRONMENTAL IMPACT STATEMENT

NEW YORK 

STATE POLLUTANT DISCHARGE ELIMINATION SYSTEM PERMITS

For the ROSETON 1 & 2, BOWLINE 1 & 2, and INDIAN POINT 2 & 3

STEAM ELECTRIC GENERATING STATIONS

TABLE OF CONTENTS

EXECUTIVE SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

PROPOSED ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Project History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Permitting Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

The Hudson River Settlement Agreement . . . . . . . . . . . . . . . 7

Department SPDES Permits . . . . . . . . . . . . . . . . . . . . . . . . 8

Consent Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

The Draft Environmental Impact Statements . . . . . . . . . . . 10

Public Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Ownership Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Final Environmental Impact Statement . . . . . . . . . . . . . . . 12

REGULATORY SETTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Federal Clean Water Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

NPDES Permitting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CWA §316(b) and Cooling Water Intake Structures . . . . . . . 15

New York State Laws ............................... 17

SPDES Permitting Program . . . . . . . . . . . . . . . . . . . . . . . 17

Legislative Findings and Commissioner’s Powers . . . . . . . . . 22

New York State Coastal Management Program . . . . . . . . . . 24

Hudson River Estuary Management Program . . . . . . . . . . . 24

Hudson River Valley Greenway Program . . . . . . . . . . . . . . 26

Endangered Species Act . . . . . . . . . . . . . . . . . . . . . . . . . 27

The New York State Energy Plan . . . . . . . . . . . . . . . . . . . . 27

NYS Environmental Quality Review Act (SEQR) . . . . . . . . . . 28

MITIGATION AND ALTERNATIVES . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Available Mitigation Technologies . . . . . . . . . . . . . . . . . . . . . . . 29

Alternatives Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

PUBLIC COMMENT SUMMARY .............................. 39

List of Commentors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

RESPONSES TO COMMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
-ivFish Populations - 1. “Cropping” (that, is, consumption of some

portion of one or more populations) by power plants is not a

legitimate use of NYS’s fisheries and other aquatic resources. .49

The State’s fish and wildlife . . . . . . . . . . . . . . . . . . . . . . . 49

The State’s waters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Ecosystem values . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Impacts on the aquatic community . . . . . . . . . . . . . . . . . . 51

Fish Populations - 2. Many species in the Hudson River system are

actually declining. While the striped bass (SB) population is up,

that increase may be the result of other management decisions

and activities. Historic baseline or trend data is not substantially

discussed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Fish Populations - 3. Several commentors questioned one or more of

the assumptions used in one or more of the population models;

in particular, density-dependence is unproven. .......... 59

Atlantic Tomcod . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Striped Bass . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

White Perch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

American Shad . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Bay Anchovy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Fish Populations - 4. Climate, disease, and the changing ecology of

the Hudson River system are not considered in the population

models. ..................................... 64

Climate Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Rainbow Smelt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

Atlantic Tomcod . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

Comb Jellies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

Zebra Mussels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

Fish Population - 5. Thermal analyses need to be updated to reflect

recent, more extreme conditions. ................... 71

Fish Protection Points - 6. Fish protection points (FPP) would provide

operational flexibility but even less protection than conditions in

the Hudson River Settlement Agreement (HRSA). ........ 76

Mitigation - 7. DEIS includes little information on barrier systems and

acoustic deterrents. ............................. 82

Wedge-Wire Screens ............................ 82

Fish Barriers .................................. 83

Acoustic Deterrent System ........................ 84

Mitigation - 8. The DEIS significantly overstates costs and energy

impacts of closed cycle cooling. ..................... 86

Mitigation - 9. DEIS alternatives and proposed action do not present a

fair picture of available alternatives. ................. 87

Other Topics - 10. The DEIS needs to consider effects of New York’s

recent conversion to a competitive energy market, take the

State Energy Plan into account, or impose parity among facilities.

........................................... 88
-vOther Topics - 11. Radiation discharges are not discussed in the DEIS,

but should be. ................................ 90

Other Topics - 12. Several commentors expressed generalized

opposition to renewal for one or more facilities. ......... 92

Please note that appendices are not available on the website. However, you may

request one or more of the appendices by contacting Betty Ann Hughes 

at bahughes@gw.dec.state.ny.us.

List of Appendices ...................................... 93

F-I. Notices and Comments on 1999 DEIS ..............

F-II. Text of HRSA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F-III. Fourth Amended Consent Order ..................

F-IV. ESSA reports ...............................

F-V. Other cited references and letters not readily available . .
-vi- (This page intentionally left blank.)
Page 1 of 93

EXECUTIVE SUMMARY

The action before the New York State Department of Environmental

Conservation (Department) is the decision whether to renew State Pollutant

Discharge Elimination System (SPDES) permits which would allow three

steam electric generating stations to discharge waste heat, a pollutant, to

the waters of the Hudson River; the permits would also allow the facilities to

continue to withdraw water from the Hudson River for use as cooling water. 

The three facilities are: 

• Bowline Point (Units 1 and 2), West Haverstraw, Rockland County; 

• Indian Point (Units 2 and 3), Buchanan, Westchester County; and 

• Roseton (Units 1 and 2), Newburgh, Orange County 

(See Figure 1 in main text for general locations of all 3 facilities). 

In December 1999, the owners and operators of the three facilities

submitted a Draft Environmental Impact Statement (DEIS) to the

Department which assessed the resources likely to be impacted by the

facilities; evaluated alternative technologies and management strategies to

mitigate impacts from each facility’s operations; and proposed a preferred

action intended to reduce the respective impacts. In March 2000, the

Department accepted the DEIS for purposes of review and subsequently

issued a Notice of Complete Application in the Environmental Notice Bulletin

and in newspapers in the vicinity of each facility. 

Department staff have further reviewed the DEIS and conclude that, while it

was acceptable as an initial evaluation and assessment, it is not sufficient to

stand as the final document, and additional information as to alternatives

and evaluation of impacts must be considered. These considerations have

been undertaken by Department staff to develop a final environmental

impact assessment. This Final Environmental Impact Statement (FEIS)

consists of the original DEIS submitted by the facilities’ operators; comments

received on the DEIS; the Department’s responses to those comments, with

similar comments grouped for response purposes; plus expanded discussions

of the regulatory setting and alternatives for mitigation of impacts from the

operation of the HRSA plants.

The Hudson River is rich with aquatic life, providing habitat for the early,

sub-adult, and adult life stages of many aquatic species, including a number

of game, commercial, and forage fish species. The Department’s regulatory

role includes limiting thermal discharges from each facility to ensure the

survival of aquatic resources and also preventing aquatic organism mortality
1

 Entrainment occurs when small aquatic life forms are carried into and

through the cooling system as water is withdrawn for use in a plant’s cooling

system; impingement occurs when larger aquatic life forms are caught against racks

or screens at the intakes, where they may be trapped by the force of the water,

suffocate or be otherwise injured.

2

 DEIS Appendix VI-1-D-2, “Estimated Total Number of Fish Entrained”, and

DEIS Appendix VI-1-D-1, “Estimated Number of Fish Killed Due to Entrainment”,

(both utilizing generator estimates of through-plant survival), and calculating the

mean mortality over the years presented for each species at each facility.

3

 National Pollutant Discharge Elimination System - Proposed Regulations to

Establish Requirements for Cooling Water Intake Structures at Phase II Existing

Facilities. USEPA Docket No. OW-2002-0049; see 67 FR 17122.

4

 Figures are absolute numbers of entrainable life stages, including eggs,

yolk-sac larvae, post-yolk-sac larvae, and some juveniles, of the species studied.

5

 “River Herring” includes both Blueback Herring and Alewife, which are

difficult to differentiate in their early life stages. It does not include other herring

species like shad.

Page 2 of 93

resulting from impingement and entrainment at each facility’s cooling water

intake structure (CWIS).1

To illustrate the magnitude of impacts of entrainment, Table 1 (below) uses

data from the DEIS to calculate the average annual number of organisms of

six of the fish species entrained by the three facilities.2

 If one assumes that

all entrained fish die, as does the United States Environmental Protection

Agency (USEPA) in its proposed rulemaking for cooling water intakes, then

the total number of fish entrained is equal to total mortality from

entrainment.3 

Table 1. Estimated Average Numbers of Selected Fish Species

Entrained Annually at Roseton, Indian Point, and Bowline

Stations, 

Based on In-plant Abundance Sampling, 1981-1987.4

 

Plant

Species

Roseton Indian Point Bowline Total

American

Shad

3,128,571 13,380,000 346,667 16,855,238

Bay

Anchovy

1,892,500 326,666,667 81,000,000 409,559,167

River

Herring5

345,714,286 466,666,667 13,814,286 826,195,238
6

 No numbers are available for Atlantic tomcod because, for the source

study, no collections were made during the early part of the season when Atlantic

tomcod entrainment and mortality would be a serious issue.

Page 3 of 93

Striped

Bass

129,857,143 158,000,000 15,571,429 303,428,571

White

Perch

211,428,571 243,333,333 13,257,143 468,019,048

Atlantic

Tomcod6

No Data This

Study

No Data This

Study

No Data This

Study

No Data This

Study

Total 692,021,071 1,208,046,66

7

123,989,524 2,024,057,262

The generators attempted to estimate through-plant survival, and using

those adjustments, the calculations result in a slightly lower number of fish

killed by entrainment mortality, as shown in Table 2 (below).

Table 2. Estimated Annual Entrainment Mortality of Six Fish

Species

at Roseton, Indian Point, and Bowline Stations, 

Using Generator Estimates of Through-plant Survival.

 

Plant

Species

Roseton Indian Point Bowline Total

America

n Shad

2,500,000 10,640,000 281,667 13,421,667

Bay

Anchovy

1,892,500 326,666,667 78,285,714 406,844,881

River

Herring

277,142,857 371,666,667 11,085,714 659,895,238

Striped

Bass

40,428,571 46,500,000 4,671,429 91,600,000

White

Perch

130,000,000 138,666,667 8,071,429 276,738,095

Atlantic

Tomcod

No Data This

Study

No Data This

Study

No Data This

Study

No Data This

Study

Total 451,963,929 894,140,000 102,395,952 1,448,499,881
7

 33 U.S.C. §§ 1251 - 1376

Page 4 of 93

Based on data presented in the DEIS and analyses in that and in this FEIS,

Department staff conclude that the generators’ estimates represent the

lower boundary of the actual mortality range, that is, the actual mortality

lies somewhere between the generators’ number (low end) and 100%

(upper end, all entrained organisms die). Later sections of this FEIS discuss

the significance of entrainment mortality; other impacts of continued

operation of the HRSA generating stations, including thermal impacts; and

potential control or mitigation measures. 

As a result of the Department’s further review of the DEIS plus the

additional information and analysis provided by staff, a draft permit can be

developed for each facility. Each draft permit will be based on this FEIS

together with a detailed, site-specific application for that station and will

contain a decision on the “best technology available” (BTA) to minimize

entrainment and impingement mortality at that station. These BTA decisions

are required by §316(b) of the federal Clean Water Act.7 Supplemental

application materials relating to existing facilities and system designs are

still necessary for each site. An individual draft permit will be issued for

each site, but in general terms, each permit will require the covered facility

to meet BTA by designating, as SPDES permit conditions, a compliance

schedule to implement one or more of the technologies now available to

substantially reduce entrainment and impingement mortalities from the

cooling water intake at that station. 
Page 5 of 93

PROPOSED ACTION

The action before the New York State (NYS) Department of Environmental

Conservation (Department) is the decision whether to renew State Pollutant

Discharge Elimination System (SPDES) permits which would allow three

steam electric generating stations to discharge pollutants, including waste

heat, to the waters of the Hudson River. The permits, if renewed, would

also allow the continued withdrawal of water from the Hudson River to be

used as cooling water. The three facilities are:

• Bowline Point (Units 1 and 2), West Haverstraw, Rockland County; 

• Indian Point (Units 2 and 3), Buchanan, Westchester County; and 

• Roseton (Units 1 and 2), Newburgh, Orange County.

Figure 1, on the following page, shows the location of the three generating

stations
8

 Scale about 20% reduced from original.

Page 6 of 93

Fig. 1. General Location of HRSA Plants8
Page 7 of 93

Project History

Permitting Authority

Bowline Point, Indian Point, and Roseton steam electric generating stations

are all facilities which were in operation prior to enactment of the federal

Clean Water Act in 1972. The Department regulates Bowline Point, Indian

Point, and Roseton pursuant to its authority as the State agency approved

by the United States Environmental Protection Agency (USEPA) to issue

SPDES permits. On October 28, 1975, the USEPA gave its approval to the

Department to administer the federal National Pollutant Discharge

Elimination System (NPDES) program by virtue of a memorandum of

agreement signed by the Department’s Commissioner, Ogden R. Reed, and

the Acting Region II Administrator for the USEPA, Eric B. Outwater. The

Department’s SPDES program is set forth in Article 17 of the Environmental

Conservation Law (ECL), with underlying regulations promulgated at 

6 NYCRR Parts 700 et seq and 750 et seq.

The Hudson River Settlement Agreement

Prior to authorizing the NYS SPDES program, earlier in 1975, the USEPA

issued NPDES permits for the Indian Point nuclear power facility and the

Roseton and Bowline Point fossil fuel power facilities. All three permits

contained conditions to restrict thermal discharges, that is, water heated by

the process of cooling the condenser coils at the fossil plants and by the

secondary cooling phase of the nuclear power generation systems. At the

time those permits were issued, the operators of these Hudson River power

plants, Consolidated Edison (Con Ed) for Indian Point Unit 2, the New York

Power Authority (NYPA) for Indian Point Unit 3, Central Hudson Gas and

Electric (CHG&E) for Roseton, and Orange and Rockland Utilities (O&R) for

Bowline Point used once-through cooling systems, withdrawing cooling water

directly from and discharging the warmed effluent back to the Hudson River. 

Among the issues considered by USEPA in issuing those 1975 NPDES permits

were concerns regarding thermal discharges, cooling water intakes, and fish

mortalities associated with the cooling water intakes. The USEPA’s 1975

NPDES permits would have in effect required retrofitting of cooling towers at

all three of these Hudson River power plants. In 1977, Con Ed, NYPA,

CHG&E, and O&R (collectively, the “generators”) sought an administrative

adjudicatory hearing against the USEPA draft permits to overturn those

cooling water intake conditions and other requirements of the 1975 NPDES

permits. That and subsequent proceedings were joined by a number of

other government agencies and non-governmental organizations (NGO’s).
9

 The complete text of the HRSA is included as Appendix F-II to this FEIS.

10 ECL §17-0817(1)

Page 8 of 93

In 1981, after a number of years of adjudicatory proceedings, the generators

signed the Hudson River Settlement Agreement (HRSA) to resolve the

disputes relating to the USEPA’s 1975 NPDES draft permits.9 The HRSA was

a 10-year agreement designed to obtain necessary data, impose needed

analytical assessments, and develop an impact assessment to determine

how best to mitigate impacts to the Hudson River from the three generating

facilities. The HRSA was also executed by the USEPA, the NYS Attorney

General, the Department, and involved NGO stakeholders including the

Scenic Hudson Preservation Conference (Scenic Hudson), Hudson River

Fishermen’s Association (Riverkeeper), and the Natural Resources Defense

Council (NRDC). The HRSA was effective for the ten year period from May

10, 1981 to May 10, 1991.

The HRSA provided, among other things, for mitigative measures to reduce

fish mortalities at each generation facility as a result of: (a) impingement of

adult and juvenile fish on racks and screens at the plants’ intake structures,

and (b) entrainment of fish eggs and larvae through the respective units’

cooling apparatus. Those measures included seasonal “outages”, or

discontinuing cooling water usage by ceasing plant operations. Those

measures also included installation of variable speed pumps at Indian Point

Units 2 and 3 within three and one-half years after the effective date of the

agreement, to keep the volumes of Hudson River water used for cooling to

the minimum required for efficient operation. In addition, the HRSA

established a biological monitoring program for monitoring fish species and

their life stages at different Hudson River locations during each season.

Department SPDES Permits

By statute, SPDES permits for surface water discharges have a maximum

duration of five years.10 In 1982, the Department issued a SPDES permit to

each of the facilities covered by the HRSA, including limitations governing

the release of thermal discharges, and incorporating the terms of the HRSA

agreement into the permit so that the environmentally protective mitigation

measures set forth in the Agreement were included as conditions. These

permits expired in 1987.

In 1987, the Department issued SPDES permit renewals to each of the three

HRSA generation facilities (Indian Point Units 2 and 3 were issued a single

permit even though the two units had different owners). These most recent

SPDES permits for Indian Point Units 2 & 3, Bowline Point Units 1 & 2, and

Roseton Units 1 & 2 Generating Stations became effective on October 1,

1987, with a common expiration date of October 1, 1992. Again, along with
11 New York State Administrative Procedure Act (SAPA) §401(2); 6 NYCRR

Part 621.

Page 9 of 93

appropriate thermal discharge conditions, the HRSA agreement was

incorporated into these permits and the HRSA mitigation provisions were

continued as conditions for operation. 

Prior to the expiration of the 1987 permits, on April 3, 1992, the generators

submitted timely applications to the Department for renewal of their

respective SPDES permits. Pursuant to the New York State Administrative

Procedure Act (SAPA) and the Department’s implementing regulations,

“[w]hen a licensee has made a timely and sufficient application for the

renewal of a license or a new license with reference to any activity of a

continuing nature, the existing license does not expire until the application

has been finally determined by the agency...”.11

Also prior to the expiration of the 1987 SPDES permit, by correspondence

dated May 15, 1991, the Department and the generators executed an

agreement to continue the mitigative measures established in the 1981

agreement until SPDES renewal permits were issued. With respect to Indian

Point Units 2 and 3, the letter agreement also memorialized Con Ed’s and

NYPA’s commitment to install special fish protective screens to reduce fish

impingement at the intake structures. In addition, the agreement provided

that the parties would negotiate in good faith to develop a long-term

resolution of: cooling water intake structures (CWIS), thermal discharges,

fish mortality reductions due to mitigative measures, the costs of mitigative

measures, and alternatives. Public notice was to be given of such

negotiations and the parties expressed their understanding that intervener,

including such groups as the Riverkeeper and Scenic Hudson, would be

involved as participants in the negotiations.

On September 13, 1991, Riverkeeper, Scenic Hudson, and NRDC filed a law

suit against the Department and the four generators seeking: 

• annulment of the May 15, 1991 agreement between the Department

and the generators; 

• participation by those three NGO entities in the permitting process; as

well as

• resolution of outstanding issues regarding mitigation measures.

Consent Orders

On March 23, 1992, the parties to that legal proceeding executed a judicially

approved Consent Order resolving the matter which provided that the

generators would continue the HRSA mitigative measures, such as the

“outages” timed to reduce impacts to certain fish species, and to continue
12 Natural Resources Defense Council, Inc., Hudson River Fishermen’s

Association, et al., v. NYSDEC, Consolidated Edison Company of New York, Inc., New

York Power Authority, Orange and Rockland Utilities, Inc., and Central Hudson Gas &

Electric Corp., Albany County, Index No. 6570-91.

13 The Fourth Amended Consent Order is attached as Appendix F-III.

14 In the remainder of this FEIS, the general term “Consent Order” will apply

to the entire series of extensions unless a particular date or extension is named. 

15 ECL §8-0109.4; 6 NYCRR §617.7.

Page 10 of 93

underwriting significant Hudson River fish species studies and data

acquisition.12

The 1992 Consent Order was extended by the parties on four separate

occasions, having expiration dates of September 1, 1994, September 1,

1995, September 1, 1997, and February 1, 1998. When the Fourth

Amended Consent Order expired on February 1, 1998, the parties, who were

by then actively engaged in negotiations regarding elements of draft SPDES

permits, did not reach agreement to continue with a fifth extension of the

Consent Order.13 However, the generators agreed to continue the mitigative

measures included in the continuing SPDES permit and provisions of the

Fourth Amended Consent Order until new SPDES permits were issued to

them.14

The Draft Environmental Impact Statements

On May 20, 1992, pursuant to the State Environmental Quality Review Act

(SEQR), the Department issued a positive declaration requiring the

generators to prepare an environmental impact statement regarding the

1992 applications for permit renewals.15 That determination was based on

the Department’s assessment that the measures proposed in the generators’

1992 renewal applications were less protective of the Hudson River and its

aquatic resources than the HRSA terms had been. In June 1993, the

generators submitted a preliminary Draft Environmental Impact Statement

(DEIS) to the Department in accordance with the regulatory requirement to

submit a draft environmental impact statement for the renewal of their

respective SPDES permits.

On September 3, 1993, the Department advised the four HRSA generators

that it had reviewed the June 1993 preliminary DEIS and that their

respective SPDES renewal applications remained incomplete pending receipt

of additional information. The Department advised the generators of

inadequacies of the preliminary DEIS, to which the generators later

responded.
16 Notices are included in Appendix F-I to this FEIS.

Page 11 of 93

From 1993 to 1999, the Department, the generators, the New York State

Department of Public Service (NYSDPS), the USEPA, the National Marine

Fisheries Service (NMFS), the United States Fish and Wildlife Service

(USFWS), Riverkeeper, NRDC, Scenic Hudson and New York Rivers United

(NYRU) participated in an extensive effort to address numerous technical

and procedural issues regarding the generators’ plants, including conducting

technical meetings or “workshops” of experts representing each participant

or group, and conducting plenary meetings of all participants to draw

together the technical and legal expertise devoted to resolving issues with

the SPDES renewal applications for the HRSA plants. 

On December 14, 1999, CHG&E, Southern Energy New York (successor to

O&R), Con Ed, and NYPA presented the Department with a revised DEIS. 

Department Staff reviewed the DEIS and issued a Notice of Complete

Application dated February 28, 2000, which was published in the

Environmental Notice Bulletin (ENB) on March 8, 2000, and in newspapers in

the vicinity of the plants during the week following March 8, 2000.16 The

Notice sought public comments on the DEIS, which were to be submitted to

the Department by April 24, 2000. 

Public Hearings

Subsequently, on May 2, 2000, the Department’s Office of Hearings and

Mediation Services issued a Notice of Hearing and Notice of Extension of

Comment Period.15 The Notice of Hearing announced a public legislative hearing

to receive unsworn statements about the DEIS at the Croton Village Hall, Crotonon-Hudson, New York, at 2:00 PM and 7:30 PM on June 8, 2000. The Notice also

extended the public comment deadline from April 24, 2000 to June 24, 2000. The

May 2, 2000, Notice of Hearing was also published in the ENB and in newspapers in

the vicinity of the plants. These notices included the times and location of the June

8, 2000, public hearing and also identified eight locations where the DEIS was

available for review by the public. Sixteen written comments were received, and

seventeen individuals spoke at the hearings, including representatives of the

generators, NGO’s, individuals, and the Department. The Department also provided

the generators with several pages of comments. 

Ownership Changes

As part of NYS’s energy market restructuring, the HRSA plants have undergone

ownership changes since the submission of the DEIS. Indian Point Units 2 and 3

are now owned and operated by Entergy Nuclear Indian Point 2, LLC, and Entergy

Nuclear Indian Point 3, LLC. Bowline Point is now owned and operated by Mirant

Bowline, LLC. Roseton is now owned and operated by Dynegy Northeast

Generation.
Page 12 of 93

Final Environmental Impact Statement

This Final Environmental Impact Statement (FEIS) consists of multiple sections. 

The fundamental underlying data and studies are contained in the 1999 DEIS, which

is incorporated as part of this FEIS. An augmented discussion of the regulatory

setting for and history of the proposed action in this FEIS augments the materials in

the DEIS. The full texts of all comments received by the Department are included

in Appendix F-I, and public comments are excerpted and summarized in Table 3

(page –) of this FEIS; a list of all commentors is provided at the end of Table 3. 

The Department’s responses to public comments complete the FEIS. In the interest

of responding most effectively to the submitted comments, Department staff

grouped the comments under related themes and responded to each theme.
16 33 U.S.C. §§ 1251 - 1376.

17 FWPCA Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816.

18 See CWA § 402; 33 U.S.C. § 1342.

19 “Pollutant” is defined as including solid, industrial, agricultural and other

wastes, sewage, sludge, heat, rock, sand, and biological and radioactive materials;

CWA § 502(6), 33 U.S.C. § 1362(6). “Point source” is defined as any “discernable,

confined, and discrete conveyance”; CWA § 502(14), 33 U.S.C. § 1362(14).

Page 13 of 93

REGULATORY SETTING

Federal Clean Water Act 

NPDES Permitting

The basic federal law governing water pollution control in the United States is the

federal Water Pollution Control Act (FWPCA), more commonly referred to as the

Clean Water Act (CWA).16 Although the FWPCA itself dates to 1948, the CWA as we

now know it was largely shaped by comprehensive amendments in 1972 which

completely overhauled the existing system.17 The 1972 CWA is properly viewed as

the starting point for modern water pollution control law.

While the CWA has been amended several times since 1972, the heart of the Act

which has remained intact is its system of regulating both direct and indirect

discharges of pollutants into U.S. waters: the National Pollutant Discharge

Elimination System (NPDES).18 The fundamental premise of the CWA, expressed in

§301, is not to regulate an otherwise lawful activity, but to make unlawful the

discharge of any pollutant from a point source by any person.19 Thus, the discharge

of pollutants is not a right and may only be allowed as specifically provided in the

CWA. The bulk of the CWA may, therefore, be viewed as a detailed and highly

regulated exception to the “no discharge” rule of §301.

Pollution control standards under the Act are of two general types: 

(1) effluent standards which limit the quality and quantity of pollutants

discharged from the source, also called “technology-based” standards; and 

(2) ambient standards which limit the concentration of pollutants in a defined

water segment, also called “water quality-based” standards. 

By establishing limits tailored to the nature of a discharge rather than its location, a

uniform nationwide playing field was established that removed incentives for

dischargers to relocate to other states to avoid treatment requirements.

The focus of an ambient standard is on the capacity of the receiving water to absorb

or dilute a given pollutant. Thus, water quality-based standards vary according to
20 CWA § 402(a) and (b), 33 U.S.C. § 1342(a) and (b).

21 CWA § 303, 33 U.S.C. § 1313.

22 40 C.F.R. §§ 122.41 to 122.50 (permit conditions).

23 CWA § 309, 33 U.S.C. § 1319.

24 CWA § 505, 33 U.S.C. § 1365.

25 CWA § 402(k), 33 U.S.C. § 1342(k).

Page 14 of 93

the use of the receiving water - for example, recreational, industrial, or public

drinking water - and on local conditions, such as the size and flow of the receiving

water, its turbidity, and other factors unique to the segment.

Technology-based effluent standards, on the other hand, do not focus on the

qualities of the receiving water, but on the treatment a pollutant receives prior to its

discharge. Technology-based standards define and mandate a level of effluent

quality that is achievable using pollution control technology so that a pollutant’s

capacity to degrade the water segment into which it is discharged is lessened. Of

the two, technology-based effluent standards dominate the CWA’s regulatory

system.

Both of these standards are implemented and enforced through the NPDES permit

program, administered by the USEPA. Under §402 of the CWA, a discharger must

obtain an NPDES permit from EPA or from a state that has an EPA-approved

program.20 The technology-based and water quality-based standards are written

into the permits and are tailored to meet the particular permittee’s situation, such

as the pollutant-producing operation, the type and amount of pollutants to be

discharged and the condition of the receiving water.

The CWA mandated development of water quality standards for water bodies and

effluent limitations based on those standards, and it set forth the mechanism for

incorporating water quality standards into NPDES permits. States were required to

adopt classifications of water bodies according to their best uses. They were also

required to develop standards for various pollutants that would establish maximum

levels of pollutants in water bodies that would be allowable so that the water bodies

could retain their best uses.21 These standards are then, in turn, incorporated into

the NPDES permit as effluent limitations, along with any other relevant technologybased effluent limitations.

NPDES permits may also contain other conditions a permittee must meet, such as

requirements for monitoring and reporting effluent discharges.22 Discharge without

a permit or in violation of its conditions may subject the discharger to an

enforcement action by the federal or state government, which in turn may result in

civil and criminal penalties.23 A noncomplying discharger may also be subject to

enforcement by private individuals or groups under the Act’s citizen suit provision.24

In sum, the NPDES permit program is the focal point of the CWA’s regulatory

system, and compliance with an NPDES permit’s conditions is deemed to be

compliance with almost all of the Act’s regulatory provisions.25
26 See 66 Fed. Reg. 65259 (Dec. 18, 2001).

27 See generally, 65 Fed. Reg. 49071 through 4 (Aug. 10, 2000) and 66 Fed.

Reg. 65262 (Dec. 18, 2001). 

28 66 Fed. Reg. 65262 (Dec. 18, 2001).

Page 15 of 93

CWA §316(b) and Cooling Water Intake Structures

§ 316(b) of the CWA provides that any “point source” discharge standard

established pursuant to §§301 or 306 of the CWA must require that the location,

design, construction, and capacity of CWIS reflect the “best technology available”

(BTA) for minimizing adverse environmental impacts.

EPA has defined a “cooling water intake structure” as the total physical structure

and any associated constructed waterways used to withdraw water from waters of

the U.S., extending from the point at which water is withdrawn from waters of the

U.S. up to and including the intake pumps. EPA has defined “cooling water” as

water used for contact or non-contact cooling, including water used for equipment

cooling, evaporative cooling tower makeup, and dilution of effluent heat content.26

The intended use of cooling water is to absorb waste heat from production

processes or auxiliary operations.

CWA §316(b) addresses the adverse environmental impact caused by the intake of

cooling water, not discharges into water. Despite this special focus, the

requirements of §316(b) are closely linked to several of the core elements of the

NPDES permit program established under §402 of the CWA to control discharges of

pollutants into navigable waters. For example, §316(b) applies to point sources

(facilities) that withdraw water from the waters of the U.S. for cooling through a

CWIS and are subject to an NPDES permit. Conditions implementing §316(b) are

included in NPDES permits on a case-by-case, site-specific basis.

The majority of impacts to aquatic organisms and habitat associated with intake

structures is closely linked to water withdrawals from the various waters in which

the intakes are located. Based upon preliminary estimates from an EPA

questionnaire sent to more than 1,200 existing power plants and factories,

industrial facilities in the U.S. withdraw more than 279 billion gallons of cooling

water each day from waters of the U.S.27

The withdrawal of such quantities of cooling water affects large numbers of aquatic

organisms annually, including phytoplankton (tiny, free-floating photosynthetic

organisms suspended in the water column), zooplankton (small aquatic animals,

including fish eggs and larvae, that consume phytoplankton and other zooplankton),

fish, crustaceans, shellfish, and many other forms of aquatic life.28 Aquatic

organisms drawn into CWIS are either impinged on components of the CWIS or

entrained in the cooling water system itself.

Impingement takes place when organisms are trapped against intake screens by

the force of the water passing through the cooling water intake structure. This can

result in starvation and exhaustion (organisms are trapped against an intake screen
29 66 Fed. Reg. 65263 (Dec. 18, 2001); see also Thurber, N.J. and D.J. Jude,

Impingement Losses at the D.C. Cook Nuclear Power Plant During 1975-1982 With a

Discussion of Factors Responsible and Possible Impact on Local Populations, Special

Report No. 115 of the Great Lakes Research Division, Great Lakes and Marine Waters

Center, Univ. of Mich. (1985).

30 66 Fed. Reg. 65263 (Dec. 18, 2001) citing Mayhew, D.A., L.D. Jensen,

D.F. Hanson, and P.H. Muessig, A Comparative Review of Entrainment Survival

Studies at Power Plants in Estuarine Environments, Environmental Science & Policy,

3:S295-S301 (2000).

31 66 Fed. Reg. 65263 (Dec. 18, 2001) referring to Request by member

States of Atlantic States Marine Fisheries Commission to investigate the cumulative

impacts on commercial fishery stocks attributable to cooling water intakes located in

coastal regions of the Atlantic in 2001.

Page 16 of 93

or other barrier at the entrance to the cooling water intake structure), asphyxiation

(organisms are pressed against an intake screen or other barrier at the entrance to

the cooling water intake structure by velocity forces which prevent proper gill

movement, or organisms are removed from the water for prolonged periods of

time), descaling (fish lose scales when removed from an intake screen by a wash

system), and other physical harms.29

Entrainment usually occurs when relatively small benthic, planktonic, and nektonic

organisms, including early life stages of fish and shellfish, are drawn through the

cooling water intake structure into the cooling system. In the normal water body

ecosystem, many of these small organisms serve as prey for larger organisms that

are found higher on the food chain. As entrained organisms pass through a plant’s

cooling system they are subject to mechanical, thermal, or toxic stress. Sources of

such stress include physical impacts in the pumps and condenser tubing, pressure

changes caused by diversion of the cooling water into the plant or by the hydraulic

effects of the condensers, sheer stress, thermal shock, and chemical toxemia

induced by antifouling agents such as chlorine.30

In addition to impingement and entrainment losses associated with the operation of

CWIS, another concern is the cumulative degradation of the aquatic environment as

a result of: 

(1) multiple intake structures operating in the same watershed or in the

same or nearby reaches; and 

(2) intakes located within or adjacent to an impaired waterbody. 

Historically, impacts related to CWIS have been evaluated pursuant to CWA §316(b)

on a facility-by-facility basis. While the potential cumulative effects of multiple

intakes located within a specific waterbody or along a coastal segment are largely

unknown, there is concern about the effects of multiple intakes on fishery stocks.31
 32 “Pollutant” is defined as any “dredged spoil, solid waste, incinerator residue,

sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials,

radioactive materials, heat, wrecked or discarded equipment, rock, sand and industrial,

municipal, and agricultural waste discharged into water.” ECL § 17-0105(17).

 33 ECL § 17-0801.

 34 6 NYCRR § 704.1(a).

 35 NYCRR § 704.2.

New York State Laws 

SPDES Permitting Program

Pursuant to authority granted by Congress in CWA § 402, USEPA has authority to

allow states to carry out specified permitting functions, which would otherwise be

performed by USEPA, for discharges into both interstate and intrastate waters. New

York State received USEPA approval of such authority in the form of a Memorandum

of Agreement between the state and USEPA in October 1975. The Memorandum

established the basis for the SPDES permit program in New York State in lieu of a

federally administered program.

Originally enacted in 1973, Article 17, Title 8 of the Environmental Conservation

Law (ECL) authorizes The Department to administer the SPDES permitting program

that governs the discharge of pollutants into the waters of the state at a given

facility.1

 The purpose of ECL Article 17, Title 8 is:

To create a state pollutant discharge elimination system

(SPDES) to insure that the State of New York shall possess

adequate authority to issue permits regulating the discharge of

pollutants from new or existing outlets or point sources into the

waters of the state, upon condition that such discharges will

conform to and meet all applicable requirements of the [FWPCA]

... and rules, regulations, guidelines, criteria, standards and

limitations adopted pursuant thereto relating to effluent

limitations, water quality related effluent limitations ...2

The discharge must also meet all applicable requirements of the ECL and the

implementing regulations at 6 NYCRR Parts 700, et seq. and 750, et seq. The

permitting objective is to prospectively control the discharge of point-source

pollutants, including heat, by establishing chemical-specific limits and other

requirements intended to assure that water quality standards in the receiving water

body are achieved. Additional environmental objectives are to assure that aquatic

communities are not unduly harmed by discharges, and to protect the public health

and best usage of the water body.

Generally, thermal discharges to the waters of the State must meet water quality

standards to assure the protection and propagation of a balanced, indigenous

population of shellfish, fish, and wildlife in and on the body of water.3

 In addition,

thermal criteria apply to all waters of the State receiving thermal discharges.4

These criteria may be modified upon application of a permittee to the Department if

 the Department finds them to be unnecessarily restrictive and that modification 
36 6 NYCRR § 704.4.

37 6 NYCRR § 704.3.

38 See App. F-II.

39 See App. F-III.

Page 18 of 93

would still assure the protection and propagation of a balanced, indigenous

population of shellfish, fish, and wildlife in and on the body of water into which the

discharge is to be made.36 The discharge of heat as a pollutant, a “thermal

discharge”, is addressed in the Department’s regulations at 6 NYCRR Part 704. 

In making a modification to thermal criteria, the Department typically imposes a

“mixing zone” which limits the physical extent within which heated water can

exceed specific applicable criteria.37 Outside of the mixing zone, thermal criteria

must be met to assure compliance with water quality standards. Temperature

limitations are established and imposed on a case-by-case basis for each facility

subject to Part 704 jurisdiction. NYS has adopted the federal CWA §316(b) BTA

requirement for CWIS as part of the Department’s thermal discharge criteria at 6

NYCRR §704.5. 

The HRSA facilities which are the subject of this FEIS, Indian Point, Bowline Point,

and Roseton, must demonstrate their compliance with water quality standards.38

Since 1981, these facilities’ operations, and their resulting thermal discharges, have

been conditioned by their SPDES permits. Their current permits were due to expire

in 1992 but were extended under SAPA.

According to the Consent Order, the HRSA facilities were required to use their “best

reasonable efforts” to operate the respective plants to keep the volumes of water

withdrawn for cooling at the minimum required for efficient operation.39 The

original 1981 HRSA contained similar general language, and also provided charts for

each facility which identified average maximum river temperatures and specified

approximate flows for each unit at Indian Point and for all units at Bowline and at

Roseton for different periods throughout the year. 

The thermal limitations associated with the HRSA facilities’ existing SPDES permits

include the following:

Bowline Point:

As of the 1987 - 1992 SPDES permit term, Bowline did not

exceed the thermal criteria and a mixing zone did not need to be

specified to meet the water quality standard. The use of

multiport high velocity diffusers provided sufficient mixing with

ambient water sufficient to meet thermal criteria. As a

consequence, additional specifications to meet thermal criteria

have not been imposed. The SPDES permit provides a daily

maximum discharge temperature (102o

F).
40 See App. F-III.

41 1999 DEIS, Appendix VI-3-A, Thermal Modeling of Ebb and Flood

Tide Thermal Plumes (CORMIX model). Page 19 of 93

Roseton:

As of the 1987 - 1992 SPDES permit term, Roseton did not

exceed the thermal criteria and a mixing zone did not need to be

specified to meet the water quality standard and additional

specifications to meet thermal criteria were not imposed. The

use of multiport high velocity diffusers provided sufficient mixing

with ambient water to meet water quality criteria. The SPDES

permit provides a daily maximum discharge temperature (99o

F).

Indian Point:

As of the 1987 - 1992 SPDES permit term, thermal discharges

from Indian Point did not meet applicable thermal criteria. To

control thermal discharges, the SPDES permit for Indian Point

Units 2 and 3 requires that the maximum discharge temperature

for condenser cooling water not exceed 110o

F. In addition, the

daily average discharge temperature between April 15 and June

30 is not to exceed 93.2o

F for an average of more than ten days

per year during the term of the permit, beginning in 1981,

provided that it not exceed 93.2o

F on more than 15 days during

that period in any year.

The Consent Order also provided that Indian Point give “due regard to ambient river

water temperature, plant operating status, and the need to meet water quality

standards or other permit conditions”.1

 Figures B-1 and B-2 to Attachment D of the

Fourth Amended Consent Order provide graphic representations of “Predicted

Condenser Cooling Water Flow Rate Schedules to Achieve Efficient Operations of

Indian Point [Units 2 and 3]”. That Consent Order provides that there may be

some deviation from these schedules because “the minimum flow rate for any given

period is dependent upon ambient river water temperature”. 

These provisions alone, however, are not sufficient for Indian Point to meet thermal

criteria. Thermal modeling indicates that the thermal discharge from Indian Point

causes water temperatures to rise more than allowed, which is four degrees (F.)

over the temperature that existed before the addition of heat, or a maximum of

83o

F, whichever is less, in the estuary cross sections specified in 6 NYCRR

§704.2(b)(5).2

 A mixing zone was not specified in the previous SPDES permit for

the Indian Point facility. 

Even though thermal discharges from Bowline and Roseton meet water quality

criteria, their thermal contribution to the Hudson River is additive with that of

Indian Point and must be taken into account in determining whether the water

quality standard is met. If the standard is not met, the circumstances can trigger

the water quality standard requirement to assure the protection and propagation of

a balanced, indigenous population. If analyses specified in the proposed SPDES

permits are unable to make this assurance to the Department’s satisfaction, the

next level of action would be for the Department to determine how thermal

discharges would be limited to ensure that water quality standards are met.
42 See 6 NYCRR Part 750.1

43 6 NYCRR Part 703; Department Technical and Operational Guidance Series

(TOGS) § 1.1.1.

44 See 6 NYCRR Parts 701 and 800 to 941.

45 ECL § 15-0105(3).

46 ECL § 15-0105(7); see also, ECL § 17-0101.

47 6 NYCRR § 750-1.6

48 6 NYCRR § 750-1.16

49 SAPA § 401(2).

Page 20 of 93

New York has adopted the appropriate regulations for the operation of the SPDES

permit program, including standards for the development and issuance of permits

as well as for the types of effluent limitations to be imposed in these permits.42 In

addition to the federally developed categorical effluent limitations, The Department

has developed approximately 100 water quality standards for various pollutants in

its regulations and less formal “guidance” values for many more pollutants.43 The

Department has also categorized through regulation all significant water bodies in

the State, based upon the best use of each water body.44

The Department’s overall SPDES permitting activity is intended to implement the

declared public policy of the State of New York that water resources not be wasted

or degraded and “shall be adequate to meet the present and future needs for

domestic, municipal, agricultural, commercial, industrial, power, recreational and

other public, beneficial purposes.”45

Goals for water discharge permitting are also articulated in the ECL:

Reasonable standards of purity and quality of the waters of the state

be maintained consistent with public health, safety and welfare and the

public enjoyment thereof, the propagation and protection of fish and

wildlife, including birds, mammals and other terrestrial and aquatic life,

and the industrial development of the state, and to that end, to require

the use of all known available and reasonable methods to prevent and

control pollution, wastage and unreasonable disturbance and

defilement of the waters of the state.46

Any source proposing to discharge pollutants requiring a SPDES permit must file an

application with The Department at least 180 days before the proposed

commencement of the discharge47 or, if renewing an existing SPDES permit, at least

180 days before the expiration of the existing permit.48 Submission of a timely

renewal application continues the terms of the existing SPDES permit until the

renewal permit is issued by the Department.49 If the Department determines to
50 6 NYCRR § 750-1.9

51 6 NYCRR § 750-1.9

52 6 NYCRR § 750-1.9

53 6 NYCRR § 750-1.1(d)

54 6 NYCRR § 624.4(b)(5), (c)

55 6 NYCRR §750-1.16

Page 21 of 93

issue the permit, it prepares a draft permit, including proposed effluent limitations

and other conditions.50

The Department is required to provide public notice of every draft SPDES permit

which gives a description of the discharge and the terms of the draft permit, and

sets forth a public comment period of no less than 30 days during which interested

parties may submit written comments concerning the application.51 During the

public comment period any person, including the applicant, may submit written

comments or request a hearing. The Department is required to hold a legislative

hearing to receive unsworn public comments if it determines that there is significant

public interest and sufficient reason for such a hearing.52 If no hearing is held, only

the written comment period occurs, and the Department will issue a final SPDES

permit following the close of the public comment period.

In certain instances, an adjudicatory hearing may also be held, where evidence and

sworn testimony is presented before an Administrative Law Judge (ALJ). Any

interested party, as well as the applicant, may request an adjudicatory hearing with

respect to any aspect of a draft SPDES permit so long as the request is made during

the public comment period.53 At such a hearing, parties have an opportunity to

contest issues the ALJ has determined to be adjudicable.54

The Department is required to determine the existence of the following facts in a

SPDES permit renewal context:

1. That the permittee is in compliance with or has substantially

complied with all the terms, condition, requirements, and schedules of

compliance of the expiring SPDES permit; 

2. That The Department has up-to-date information on the permittee’s

production levels, waste treatment practices, and the nature, contents,

and frequency of the permittee’s discharge, pursuant to new forms and

applications or monitoring records and reports; and 

3. That the discharge is consistent with currently applicable effluent

and water quality standards and limitations, and other legally applicable

requirements.55

Upon a determination of the existence of these facts, the Department may issue a

renewal permit.

The Department also has authority to modify SPDES permits for a number of

reasons, including significant changes in a discharger’s operations or new
56 6 NYCRR § 750-1.18

57 6 NYCRR § 750-1.20

58 ECL § 11-0105.

59 ECL § 11-0303(1); see also, ECL §s 11-0303(2) and 11-0305.

60 ECL § 15-0103(2).

Page 22 of 93

information, such as the promulgation of new standards by either the State or

USEPA.56 Permits can also be modified or revoked in response to violations of permit

conditions, misrepresentations by the permittee, or changes in conditions.57

Legislative Findings and Commissioner’s Powers

In enacting legislation to preserve and protect the water resources and wildlife of the

State of New York, the NYS Legislature made findings of fact and vested the

Commissioner of the Department of Environmental Conservation with broad powers

and authority germane to the regulation of electricity generating facility operations

that use and impact such resources.

The Legislature has found:

The State of New York owns all fish, game, wildlife, shellfish, crustacea

and protected insects in the state, except those legally acquired and

held in private ownership. Any person who kills, takes or possesses

such fish, game, wildlife, shellfish, crustacea or protected insects

thereby consents that title thereto shall remain in the state for the

purpose of regulating and controlling their use and disposition.58

The general purpose of powers affecting fish and wildlife, granted to the

department by the Fish and Wildlife Law, is to vest in the department,

to the extent of the powers so granted, the efficient management of the

fish and wildlife resources of the state. Such resources shall be deemed

to include all animal and vegetable life and the soil, water and

atmospheric environment thereof, owned by the state or of which it

may obtain management, to the extent they constitute the habitat of

fish and wildlife as defined in § 11-0103 ... .59

New York State has been generously endowed with water resources

which have contributed and continued to contribute greatly to the

position of preeminence attained by New York in population,

agriculture, commerce, trade, industry and outdoor recreation.60

All fish, game, wildlife, shellfish, crustacea and protected insects in the

state, except those legally acquired and held in private ownership, are

owned by the state and held for the use and enjoyment of the people of

the state, and the state has a responsibility to preserve, protect and
61 ECL § 15-0103(8).

62 ECL § 15-0103(13).

63 ECL § 3-0301(1)(b).

64 ECL § 3-0301(1)(c).

65 ECL § 3-0301(1)(e).

66 6 NYCRR 617.9(e); 19 NYCRR 600.4(a)

Page 23 of 93

conserve such terrestrial and aquatic resources from destruction and

damage and to promote their natural propagation.61

It is in the best interests of this state that provision be made for the

regulation and supervision of activities that deplete, defile, damage or

otherwise adversely affect the waters of the state and land resources

associated therewith.62

The Department Commissioner has the power to:

Promote and coordinate management of water, land, fish, wildlife and

air resources to assure their protection, enhancement, provision,

allocation, and balanced utilization consistent with the environmental

policy of the state and take into account the cumulative impact upon all

such resources in making any determination in connection with any

license, order, permit, certification or other similar action or

promulgating any rule, regulation, standard or criterion.63

Provide for the propagation, protection, and management of fish and

other aquatic life and wildlife and the preservation of endangered

species.64

Provide for the protection and management of marine and coastal

resources and of wetlands, estuaries and shorelines.65

New York State Coastal Management Program

The NYS Coastal Management Program was developed under authority of New York

State Executive Law 910-22 and 19 NYCRR Part 600. The operative sections of the

Executive Law provide 11 points of policy that have been detailed in a single set of

44 decision-making criteria in the Coastal Management Program and final

environmental impact statement. The Department, as a state agency, must find

that all direct and funding actions, and any permitting actions that are the subject of

an EIS under SEQR, are consistent with the Coastal Management Program.66 In

addition, SEQR regulations provide that, for any state agency action in a coastal

area, a draft EIS must contain an identification of the applicable coastal

resources/waterfront revitalization policies and a discussion of the effects of the
67 6 NYCRR 617.14(d)(10)

68 Executive Law 915-a.

69 ECL §11-0306(1).

70 ECL §11-0306(2).

71 ECL §11-0306(4).

72 ECL §11-0306(5)

Page 24 of 93

proposed action on such policies.67 The SPDES permit renewals that are the subject

of this DEIS will not result in any new effects on coastal zone policies. Coastal zone

consistency forms are contained in DEIS Appendix IV-5. 

State law also requires that state agencies provide timely notice to local

governments whenever an identified action will occur within an area covered by an

approved local waterfront revitalization program (LWRP). The NYS Secretary of

State is required to confer with state agencies and local governments when notified

by a local government that a proposed state agency action may conflict with the

policies and purposes of its approved LWRP, and may modify the proposed action to

be consistent with the local plan.68 None of these facilities is in an LWRP area.

The consistency provisions of the New York State Coastal Management Program

enable the Department to consider the full range of coastal policies prior to

undertaking and approving a specific action. 

Hudson River Estuary Management Program

In 1987, ECL §11-0306 was amended in order to establish a Hudson River estuarine

district including “the tidal waters of the Hudson River, including the tidal waters of

its tributaries and wetlands from the federal lock and dam at Troy to the VerrazanoNarrows.”69 This section also directed the Department to establish a Hudson River

estuary management program “in order to protect, preserve and, where possible,

restore and enhance the Hudson River estuarine district.”70 The district was also to

consider the remainder of the Hudson River, New York Bight, and the waters around

Long Island, as they impact the Hudson River estuary.

A Hudson River estuary management advisory committee, consisting of

representatives of commercial fishing, sportsmen, research, conservation, and

recreation, as well as a Hudson River estuary coordinator, was created within the

Department to manage the Hudson River estuary management program and assist

in the development and implementation of the program.71

A Hudson River estuarine sanctuary was also established “for the purpose of

protecting areas of special ecological significance within the Hudson River estuarine

district and associated shorelands ...”.72 The sanctuary also serves as a “long-term

estuarine field laboratory for research and education concerning the Hudson River

ecosystem.” 
73 ECL §11-0306(6). 

74 See ECL §11-0306(6)(e)-(h).

Page 25 of 93

The Department and the advisory committee were directed to develop a continuing

estuary management program “for the preservation, protection, restoration and

enhancement of the Hudson River estuarine district and associated shorelands

including but not limited to its natural resources, its fish and wildlife and the habitats

within it.”73 The strategy was required to include, among other things, the following:

... 

e. Evaluation of the impact of the uses of water on the Hudson River

estuarine district including present and future demands for water and

their impact on the balance of fresh and salt water in the estuary.

f. Identification of areas of potential ecological significance which may

require rehabilitation.

g. A status report on the levels of toxicants in and their effects on

important estuarine indicator species and for species that have potential

or existing recreational or commercial value.

h. Identification of the anthropogenic activities and the conservation

and management problems that pose an existing or potential threat to

the resources and the functioning of the estuary.74

In enacting ECL §11-0306, the Legislature made the following findings and

declarations:

The legislature further finds that the Hudson River estuary is of

statewide and national importance as a habitat for marine,

anadromous, catadromous, riverine and freshwater fish species and

that it is the only major estuary on the east coast to still retain strong

populations of its historical spawning stocks. Such species are of vital

importance to the ecology and the economy of the state and to the

recreational and commercial needs of the people of the New York state

and neighboring states. A lack of sufficient and reliable research and

documentation has resulted in recurring disputes on the movements,

life cycles and habitats of these species.

The legislature further finds that the Hudson River estuary possesses a

fishery of outstanding commercial and recreational value, and the

economic potential of the Hudson river estuary’s fishery is at present

underdeveloped. Improper management and use of the Hudson River

estuary will deprive present and future generations of the benefit and

enjoyment of this valuable resource.

The legislature further finds that the protection of estuarine species

throughout their life history; the protection of their spawning habitat,

nursery habitat, wintering habitat and feeding and foraging habitat; and

the protection, enhancement and restoration of the state’s natural

resources upon which these species and their habitat depend requires a

specific program for the proper management of the Hudson River

estuary.
75 ECL §11-0306

76 ECL §44-0115(3).

77 Hudson River Valley Greenway Communities Council website,

http://www.hudsongreenway.state.ny.us/commcoun/commcoun.htm

78 Endangered Species Act of 1973, 16 U.S.C.A. §§ 1531 - 1544.

Page 26 of 93

It is hereby declared to be the policy of the state to preserve, protect

and, where possible, restore and enhance the natural resources, the

species, the habitat and the commercial and recreational values of the

Hudson River estuary.

Hudson River Valley Greenway Program

Article 44 of the ECL was amended in 1991 to establish a Hudson River Valley

Greenway Communities Council (Greenway Council) to assist Hudson River Valley

communities in the 10 counties of Westchester, Putnam, Dutchess, Columbia,

Rennselaer, Albany, Green, Ulster, Orange, and Rockland in their plans for

development. Article 44 was enacted as companion legislation to the Hudson River

estuary management program discussed earlier.75 The statute authorizes the

Greenway Council to provide and support cooperative planning to establish a

voluntary regional compact among Hudson Valley localities to protect the valley’s

natural and cultural resources and promote regional planning. The ECL also provides

that, upon compact effectiveness, state agency actions for which an EIS is being

prepared under SEQR, including Department actions, must be assessed in light of

the Greenway compact and applicable rules and regulations, and that the Greenway

Council should review and comment in writing on the DEIS.76 As of early 2003, six

counties and several localities were actively engaged in Greenway Compact planning

and programs.77

Endangered Species Act

Past operations at the Roseton Units 1 & 2, Bowline Units 1 & 2 and Indian Points

Units 2 & 3 have occasionally resulted in the impingement of shortnose sturgeon on

the facilities’ traveling screens. Shortnose sturgeon are currently listed as

endangered under the federal Endangered Species Act.78 In previous permit

proceedings, the generators supplied the NMFS with all data on shortnose sturgeon

that were collected in biological sampling programs. In testimony to the EPA in

1979, NMFS concluded in a Biological Opinion made pursuant to Section 7 of the

Endangered Species Act that the once-through cooling system of the power plants

did not pose a threat to the shortnose sturgeon population in the Hudson River. The

generators are currently in the process of obtaining updated Incidental Take Permits

from NMFS. 
79 2002 SEP, p. S-1.

80 2002 SEP, p. S-4.

81 2002 SEP, p. 2-56.

82 2002 SEP, p. 2-58.

83 ECL Article 8 Page 27 of 93

The New York State Energy Plan

The NY State Energy Plan (SEP) is published every four years pursuant to § 6-104

of the State Energy Law (effective until January 1, 2003). The SEP was last

published in 2002. 

§ 6-102 of the State Energy Law creates the State Energy Planning Board. Among

other things, the State Energy Law requires that the State Energy Planning Board

include in the SEP twenty-year forecasts of the demand for electricity and energy

supply requirements needed to supply that energy demand; an assessment of the

ability of existing energy supply sources and transmission systems to satisfy such

energy requirements; and identification and analysis of costs, risks, benefits and

uncertainties of energy supply source alternatives for satisfying energy supply

requirements which are not reasonably certain to be met by existing energy supply

sources. 

The SEP is intended to be a reflection of the State’s policies for promoting and

adopting “flexible, yet stringent, environmental policies that balance the need for

more energy with the need for improved public health and safety.”1

 Among its

major policy strategies and recommendations, it includes supporting “the continued

safe operation of nuclear, coal, natural gas, oil, and hydroelectric generation as part

of a diverse portfolio of electricity generation resources”.2

The SEP does not take into account the specific need to renew the Roseton, Bowline

or Indian Point SPDES permits or the need to complete this EIS. However, the SEP

does observe that mortalities to aquatic organisms associated with impingement

and entrainment from the operation of CWIS and thermal discharges from older

electricity generation facilities are negative environmental impacts for which

minimization should be provided.3

 The SEP finds that, since the 1998 SEP was

released, the State has made significant gains in reducing the environmental

impacts associated with energy generation and consumption. It also finds that the

impacts of energy generation on the State’s aquatic resources are analyzed and

addressed through existing regulatory programs.4

 The SEP will inform the

Department’s assessment of the impacts to and general alternatives for mitigation

of adverse environmental impacts from the Roseton, Bowline and Indian Point

generation facilities. 

NYS Environmental Quality Review Act (SEQR)

SEQR requires that NYS agencies and local governments consider the potential

adverse environmental impacts of decisions they make, including approval of

applications from regulated entities.5

 SEQR provided the Department’s authority for 
Page 28 of 93

requiring an EIS on the proposed renewal of the facilities’ SPDES permits. Before

issuing a final decision on each of the applications, the Department will be required

to make findings based on this FEIS concluding whether, among other tests, the

selected alternative(s) will minimize or avoid adverse environmental impacts, “... to

the maximum extent practicable ...”. 
84 DEIS § VIII; Radle, E. W. and M. J. Calaban, 2003. Implementation of

CWA 316(b) in New York. Proceedings (in press), A Symposium on Cooling Water

Intake Technologies to Protect Aquatic Organisms. Washington, D. C., May 2003. 

85 DEIS § VII.

86 DEIS § VIII.

Page 29 of 93

MITIGATION AND ALTERNATIVES

Available Mitigation Technologies

Based on information in the 1999 DEIS, including DEIS Appendices VII and VIII, and

on information obtained and analyses conducted since the DEIS was prepared, the

Department believes that a range of available technologies exist to minimize aquatic

resource mortality from the cooling water intake structures (CWIS) at the Indian

Point, Roseton, and Bowline Point generating stations. This discussion will focus on

conclusions relating to potential applicability to the HRSA facilities of a range of

technology and management systems to reduce impacts on aquatic organisms from

their CWIS operations. The “Response to Comments” section of this FEIS contains

more detailed descriptions, background and updates on several of the technologies,

and several supporting reports are attached in Appendix F- V.

At present, the existing cooling water system at each of the HRSA generating

stations is a “once-through” system, that is, Hudson River water is taken into the

cooling system, circulated past the condenser coils to absorb waste heat from

operation of the generation equipment, and discharged back to the Hudson River at

a higher temperature than at the intake. In the process, some larger aquatic

organisms are impinged on intake screens and many more are entrained within the

circulating cooling water. Under the HRSA and Consent Orders, and currently by

concurrence of the generators, Indian Point has achieved some reductions in intake

volumes through the use of variable flow pumps while Roseton cycles pumps on and

off to reduce water volumes used. Additionally, Indian Point has installed Fletchermodified Ristroph traveling screens to help reduce impingement mortality at those

facilities, and Bowline Point uses a seasonally-deployed fine mesh barrier net to

reduce both impingement and entrainment mortality.84 While these represent some

level of improvement compared to operations with no mitigation or protection, there

are still significant unmitigated mortalities from entrainment and impingement at all

three of the HRSA facilities.

In addition to proposing a “Fish Protection Point” (FPP) management system as the

generators’ preferred alternative,85 the DEIS presented information on a wide range

of other technologies to reduce water intake volumes, prevent impingement or

entrainment, or reduce thermal discharges, and also discussed a range of

management options which might achieve one or more of the same goals.86 Those

alternatives described by the generators included:

• outages, that is, reduction of water demand by ceasing generation at specified

plants during specified time periods;
87 In the Matter of an Application for a State Pollutant Discharge Elimination

System (SPDES) Permit by Athens Generating Company, LP, Commissioner's

Interim Decision, June 2, 2000, pp. 11 - 17 (Athens Interim Decision).

See also Wantuck, R. L., 2003. Resource Agency Views of Technology Employed to

Prevent Fish Mortality at Cooling Water Intakes. Proceedings (in press), A

Symposium on Cooling Water Intake Technologies to Protect Aquatic Organisms. 

Washington, D. C., May 2003. 

Page 30 of 93

• technology to reduce water demand, including dry, wet, and wet/dry (a/k/a

“hybrid”) cooling towers;

• minimizing flow rates with variable speed pumps or modified pumping

schedules; 

• barrier systems to minimize numbers of aquatic organisms impinged or

entrained, including Ristroph traveling screens, fine-mesh screens, cylindrical

wedge-wire screens, barrier nets, and fine-mesh barrier systems;

• behavioral deterrent systems designed to “steer” one or more classes of

aquatic organisms away from CWIS, including acoustic systems, electrical

barriers, air bubble curtains, several light systems, water jet curtains, and

hanging chains;

• district heating/cooling, that is, exporting waste steam to a nearby industrial

or institutional user, which in effect makes the receiving steam circulation

system function as a large heat diffuser and thereby reduces the need for

cooling water intake from and discharge to a water body like the Hudson;

• replacement of power provided by the HRSA plants with power from other

sources, which would essentially mean exporting impacts by importing power;

• a so-called “multiple choice” alternative which would have required a

commitment to not extend the Nuclear Regulatory Commission (NRC) Indian

Point licenses; to operate the existing Bowline Point and Roseton plants until

2015 and then repower those stations with closed-cycle cooling; and provide

32 weeks of outages annually, until the NRC licenses expire for Indian Point

and until 2015 for the other two plants;

• enhancements provided elsewhere than the HRSA plants, such as fish stocking

and habitat improvement; and

• dismissal of a “no action” alternative, as the Department must by law take

one of only 3 actions on SPDES renewal applications - approve, approve with

conditions, or deny.

Alternatives Assessment

Generally speaking, the most effective aquatic resource protection can be achieved

by greatly reducing actual water usage, particularly during seasons of peak

abundance of entrainable life stages.87 Complete retrofit of the HRSA plants to

closed-cycle (“dry”) cooling systems would result in an approximately 95% water

demand reduction and so must be given serious consideration for feasibility at each

of the HRSA stations. Despite all of the benefits, however, closed-cycle systems do

not come without impacts, and those potential impacts must also be weighed for

each site. The success of closed-cycle cooling in other NYS deployments causes this

technology to be given a relatively high level of consideration among available

technologies, while not excluding other proposals.
88 Grogan, D. B. & Assoc., Inc. 2000. Hudson River Power Plants, Cooling

Water System Design Assessment. Technical Report prepared for ESSA

Technologies, Ltd., Richmond Hill, Ontario, Canada; included in Appendix F-IV of this

FEIS.

89 Maulbetsch, J. and K. Zammit, 2003. Cooling System Retrofit Costs. 

Proceedings (in press), A Symposium on Cooling Water Intake Technologies to

Protect Aquatic Organisms. Washington, D. C., May 2003. 

90 Grogan, 2000; Maulbetsch, 2003; see also DEIS Section VIII and

appendices for basic descriptions and diagrams of cooling tower systems.

91 Grogan, 2000.

92 Department Program Policy DEP 00-2, Assessing and Mitigating Visual

Impacts. July 31, 2000. www.dec.state.ny.us/website/dcs/policy/visual2000.pdf

Page 31 of 93

Among the potential impacts of closed-cycle cooling are so-called “energy penalties”

associated with operation of cooling towers, that is, losses of generation efficiency

under certain operating and climatic conditions plus the energy required to run

component systems like fans. In addition, there are certain expenses associated

with installing closed-cycle cooling.88 Actual costs tend to vary widely depending on

individual site characteristics combined with plant and tower configurations, so

potential costs to install cooling towers can only be estimated based on a specific

design proposal for an individual site.89

Several classes of cooling tower system designs exist, each of which can

substantially reduce water demand but also have associated “energy penalties” and

other potential impacts of specific systems which must be evaluated based on

individual proposals for particular sites. Dry, or closed cycle cooling systems rely on

fans and air cooling with recovery of condensate for recirculation. “Wet” cooling

towers use evaporative cooling, and “hybrid” or “wet/dry” towers have cooling cells

with both evaporative and dry components.90 Evaporative systems tend to produce

condensate “plumes” which can be visible for considerable distances in some climatic

conditions. Frequency of plume visibility and relative water losses can vary

substantially depending on the operating parameters of a given system. 

Furthermore, evaporated water is permanently lost to the source water body; in the

Hudson River system, there is evidence indicating that such losses could be

sufficiently significant to affect salt levels. Thus, were a wet or hybrid tower to be

proposed for any of the HRSA facilities, the potential impacts of evaporative losses,

plumes, and energy losses would require careful evaluation based on a specific

design proposal for that site.91

Finally, modern cooling tower systems, whether dry, hybrid or wet, require a

sufficient amount of land to support a series or array of cooling “cells”. Again,

potential impacts would be site and design specific but include possible visibility from

sensitive receptors as well as potential impacts on sensitive land resources. The

mid-to-lower Hudson Valley has a number of sensitive visual receptors as identified

in the Visual Impact Assessment Policy developed by the Department’s Division of

Environmental Permits, but the ability to more precisely evaluate potential visual

impacts would depend on knowing precise height, configuration and site placement

of any proposed tower system.92 Similarly, prediction and evaluation of potential
93 See also Responses to Comments, following, plus individual technology

assessments in App. xx - yy of this FEIS.

94 Radle and Calaban, 2003.

95 Taft, E., T. Cook, J. Black, and N. Olken, 2003. Fish Protection

Technologies for Existing Cooling Water Intake Structures and Their Costs.

Proceedings (in press), A Symposium on Cooling Water Intake Technologies to

Protect Aquatic Organisms. Washington, D. C., May 2003. 

Page 32 of 93

land resource impacts would require that proposed site placement and size of the

tower array, at least, be known. 

A modification of generating station design that can be incorporated with new

construction or when an existing electric generating plant is “repowered”, that is,

has its core combustion and generating systems replaced, is combined-cycle

generation. In the most basic terms, a combined-cycle plant is designed to use

some of the waste heat from the initial combustion/generation process to power a

secondary turbine. Use of combined-cycle technology greatly reduces the amount of

waste heat which must be managed, thereby greatly reducing the total demand for

cooling and, thus, the size of the necessary cooling system.

Other approaches can also reduce water demand, usage or flow rates, which can

then result in reductions in entrainment, impingement, or both. Permanent,

structural measures, such as modified intake structures to reduce intake velocities,

are one example of this approach. In addition, management systems and seasonal

adjustments like the outage schedule employed for the HRSA plants can reduce

water withdrawn during critical seasons. Monitoring and verifying such systems can

require substantial recordkeeping by generators and agencies. There are also

potential conflicts resulting from outage requirements in a competitive market where

actual generating schedules are determined by the New York Independent System

Operator (NYISO). On the other hand, such systems may be more rapidly

implemented as they do not typically require major new infrastructure construction.

Structural protection can be added at intakes to reduce entrainment, impingement,

or both. Traveling screens, barrier nets, “aquatic filter barriers” (AFB) like the

Gunderboom® Marine Life Exclusion SystemTM (MLESTM), and wedgewire intake

structures can all protect some or many life-stages from being trapped against or

entering into cooling water intake systems.93 Traveling screens are used at many

intakes to reduce the load of small solids entering and potentially damaging the

cooling system; in some cases, like at Indian Point, those screen systems have been

modified to incorporate “fish return” components.94 These screens are most

effective at reducing impingement of larger aquatic organisms but do very little to

reduce entrainment. Similarly, barrier nets are typically relatively coarse mesh (3 -

5 mm opening, or wider) and are more effective in reducing impingement than

entrainment. Barrier nets have been used in a range of fresh- and saltwater

systems in the United States.95 A fine-mesh barrier net (3 mm opening) has been

seasonally deployed at Bowline Point under the HRSA and subsequent Consent

Orders. 
96 See reports in Department application file for the 2003 Lovett SPDES

renewal, Department # 3-3928-00010/00002 and 3-3928-00010/00045

97 McLean, R. 2003. State of Maryland Perspectives on Cooling Water Intake

Technologies to Protect Aquatic Organisms; and Henderson, P., R. Seaby and R.

Somes. 2003. Filter Curtain Materials, Entrainment, Biofouling and Permeability. 

Both in Proceedings (in press), A Symposium on Cooling Water Intake Technologies

to Protect Aquatic Organisms. Washington, D. C., May 2003. 

98 Taft, E., T. Cook, J. Black, and N. Olken. 2003. Fish Protection

Technologies for Existing Cooling Water Intakes and Their Costs. Proceedings (in

press), A Symposium on Cooling Water Intake Technologies to Protect Aquatic

Organisms. Washington, D. C., May 2003. 

Page 33 of 93

AFB’s are a variant on barrier nets. Instead of relatively coarse openings, AFB’s

have micropores which allow water passage but block most floating or suspended

organisms and objects. These micropores are sufficiently fine to act as a barrier to

many fish eggs and larvae as well as other floating and suspended aquatic

organisms. Depending on a facility’s intake configuration, an AFB can be installed as

an in-water, surface-to-bottom “curtain” surrounding an open-water intake, or as

panels running along a shoreline, parallel to river flow, to screen a shoreline intake. 

The Department has monitored a series of deployments of a “curtain” installation of

the Gunderboom® MLESTM at the Lovett generating station, also on the Hudson

River, on the opposite shore and slightly downstream from Indian Point (Figure 2,

following this text section). In those deployments, the MLESTM showed effectiveness

approaching that of closed cycle cooling for reducing both entrainment and

impingement.96 Other researchers have identified “fouling” (clogging openings with

debris or organisms) as a concern with both barrier nets and AFB’s at other

locations,97 and shoreline or channel bottom modifications can be necessary for

deployment. Thus, again, site- and design-specific evaluations and impact

assessments must be made of any proposed installation of AFB or barrier net

system, and effectiveness monitoring should be required for some time after

installation.

Wedge-wire intake screens have also been shown to be very effective in reducing

impingement but variably successful in reducing entrainment.98 Wedge-wire screens

essentially provide a filtering hood over an intake that both physically blocks many

organisms from entering the intake and reduces intake flow rates, by essentially

“spreading” the intake’s draw over a relatively large surface area. How effective a

specific wedge-wire screen installation will be in reducing entrainment depends on

the “slot” size of the screen and on the size distribution of potentially entrainable

aquatic organisms in that water body. Two millimeter (mm) slots, or openings

between metal parts to provide water passage, will generally block organisms 15

mm and larger; smaller slot openings will protect smaller organisms but also reduce

the flow rate through a given area of screen. Where water volume and flow rate

requirements of a generating facility plus the local populations of entrainable

organisms match the capabilities of the wedge-wire screen system, this can provide

an effective intake protection system, however, determining that match will require

detailed, site-specific analyses.

Behavioral and deterrent systems like acoustic deterrents have also shown promise

for reducing mortality of some species or classes of aquatic organisms in specific
99 Radle et al, 2003; Ross, Q. E., D. J. Dunning, J. K. Menezes, M. J. Kenna,

Jr. and G. Tiller. 1996. Reducing Impingement of Alewives with High-Frequency

Sound at a Power Plant Intake on Lake Ontario. North American Journal of Fisheries

Management, 16:548-559; Maes, J., A. Turnpenny, D. Lambert, J. Nedwell, A.

Parmentier and F. Ollevier. 2002. The Impact of Cooling Water Abstraction On Fish

At The Electrobel Power Plant Doel (Belgium) After Installation Of A Fish Guidance

Sound System. Journeew D’etude Du Cebedeau, Nov/Dec 2002. Pp. 75-78.

100 Taft et al, 2003; Maulbetsch et al, 2003.

101 Athens Interim Decision.

102 In the Matter of The Applications for Clean Air Act Title IV and SPDES

permits by PSEG Power New York, Inc. (Bethlehem Energy Center), Interim Decision,

January 31, 2002.

103 In the Matter of the Application for a SPDES permit and Air Pollution

Control permits by Mirant Bowline, LLC. (Bowline 3 Decision), Decision, March 19,

2002.

104 Lovett Electric Generating Station, SPDES Permit (and supporting Fact

Sheets), DEC # 3-3928-00010/0002; NY-0005711; February 6, 2003.

105 In the Matter of the Application of Astoria Generating Company, L.P. for a

Certificate to Construct and Operate a 1,816 MW Electric Generating Plant pursuant

Page 34 of 93

situations. Most notably, sonic deterrent systems have been shown to be effective in

protecting adults of some herring species from impingement at intakes in Lake

Ontario, on the English Channel, and in Belgium.99 Key design criteria of these

deployed systems differ widely, including operating pitches, timing, and speaker

placement. Because there are still wide differences in designs and an apparently

narrow range of species susceptible to sonic deterrence, application at any of the

HRSA plants would require site and resource assessments to determine likelihood of

success as well as followup studies to monitor effectiveness. Other deterrent

technologies do not have sufficient performance records to be considered available

at this time.

The most promising BTA approach for the HRSA plants at this time appears to be

combinations of technologies, or technologies plus management systems, deployed

in such a manner as to provide increasingly effective aquatic resource protection. 

This conclusion is consistent with that of other researchers working with cooling

water intakes at existing power stations.100 

Significantly for NYS, this approach of combined technologies would also be

consistent with the BTA determinations recently reached for several new or

repowered electric generating stations on the Hudson River and estuary system,

which have generating capacities similar to units at the HRSA facilities: 

• Athens Generating Station (Athens), between Albany and Kingston;101

• Bethlehem Energy Center (Bethlehem), slightly south of Albany;102

• Bowline 3, adjoining Bowline Point 1 and 2, West Haverstraw;103

• Lovett Electric Generating Station, Stony Point;104

• Astoria Generating Company (Reliant/Astoria), Queens, New York

City(NYC);105
to Article X of the Public Service Law (Reliant/Astoria Decision), Recommended

Decision, April 3, 2003.

106 In the Matter of an Application by Astoria Energy LLC for a Certificate to

Construct and Operate a 1000 MW Electric Generating Plant pursuant to Article X of

the Public Service Law (SCS/Astoria Decision), Order and Opinion Granting

Certificate, November 21, 2001.

107 In the Matter of an Application by the New York Power Authority for a

Certificate to Construct and Operate a 500 MW Electric Generating Plant pursuant to

Article X of the Public Service Law (NYPA/Astoria Decision), Recommended Decision,

December 17, 2001.

108 Athens Interim Decision, p.12.

Page 35 of 93

• Astoria Energy (SCS/Astoria), Queens, NYC;106 and

• New York Power Authority (NYPA/Astoria), also in Queens, NYC.107 

Locations of these facilities are shown on Figures 2 and 3, following this section. 

For the Athens project, a new plant employing combined-cycle technology, potential

impacts on aquatic resources were found to be a very compelling concern, and a dry

cooling system was determined to be BTA. At Bethlehem, a repowering

incorporating combined-cycle technology, third parties voiced strong concerns over

potential visibility of the taller structures required for a full dry cooling system as

opposed to wet or hybrid cooling tower systems, but significant numbers of species

and life stages susceptible to both entrainment and impingement were present at

the site. Thus, for that project, a plan was developed and approved to construct

hybrid cooling towers, install a wedgewire structure over the intake, and seasonally

deploy an MLESTM to further screen the intake during peak periods of potential

entrainment. The MLESTM installation at Bethlehem will be flat panels generally

paralleling the shoreline. 

Bowline 3, a new combined-cycle plant, will use a combination of technologies

similar to that at Bethlehem. In addition, Bowline 3's sponsors propose to use

discharge water from Bowline 1 and 2, when available, instead of Hudson River

water for its cooling water source. This management strategy could further reduce

the amount of fresh river water required for the new generating plant. At the

Reliant/Astoria facility, a repowering project on the Queens side of the East River,

combined-cycle generation with hybrid towers plus intake protection will be

provided; the towers will use a reverse osmosis treatment system to minimize salt

drift impacts. The SCS/Astoria and NYPA/Astoria projects, both new plants

employing combined-cycle generation, will use dry cooling.

In each of these recent decisions, consistent with established law, the aquatic and

other natural resources present at and site-specific constraints of each project

factored into the individual BTA determination. Each BTA decision must also be

found to maximize fish protection while minimizing or avoiding other impacts “... to

the maximum extent practicable ...” to satisfy SEQR as well as CWA §316(b). These

decisions reiterate that each SPDES permit application involving a CWIS will present

an opportunity to make an independent BTA decision.108 By their very nature, BTA

decisions are application-specific, based on site-specific characteristics rather than
109 Scale reduced from original by about 55%.

Page 36 of 93

pre-established quantitative goals applicable to applications generally. This

appropriately addresses the unique physical and regulatory aspects of each site,

including issues that are land-based and water body-specific, as well as its particular

technological limitations or parameters.

Fig.3, facing page. Locations of Selected New and Existing Power Plants 

on the Lower Hudson Estuary, Hudson River, NY.109
Page 37 of 93
110 Scale reduced from original by about 20%.

Page 38 of 93

Fig.3. General Location Map, Athens Generating Station 

and Bethlehem Energy Center, Hudson River, NY110
111 A list of all commentors and abbreviations is included at the end of this

table. 

Page 39 of 93

PUBLIC COMMENT SUMMARY 

Table 3 (following pages) presents a summary of comments received on the 1999

DEIS, both in writing and orally, at the June 8, 2000, legislative hearing. Comments

addressing similar themes are grouped together. The final page of this summary

contains a list of all commentors with a key to name abbreviations. Full texts of all

written comments plus the hearing transcripts are attached in Appendix F-I.

Table 3. Summary of Public Comments Received on DEIS111

TOPIC 

\

PUBLIC 

COMMENTS

FISH POPULATIONS

1. “Cropping” (that, is,

consumption of some

portion of one or more

populations) by power

plants is not a legitimate

use of NYS’s fisheries

and other aquatic

resources.

EA: continued operation of plants at current levels

of entrainment and impingement are inconsistent

with prior NYS statements that power plants should

not “crop” fish stocks

NMFS: alternatives discussion weakened by

presumption that “cropping” aquatic resources by

power plants is acceptable

Riverkeeper: DEIS provides no basis for concluding

that mitigation measures should be accepted instead

of closed-cycle cooling - technology and policy have

advanced to point where [continued] fish mortality

at power plants is an unnecessary anachronism

2. Many species in the

Hudson River system are

actually declining. While

the striped bass (SB)

population is up, that

increase may be the

result of other 

management decisions

and activities. Historic

baseline or trend data

not substantially

discussed. 

EA: some fish stocks actually showing declines -

utilities’ own data shows substantially reduced year

classes and abundance for several species

PISCES: DEIS seriously underestimates potential

impacts on bay anchovy, especially early in season

Riverkeeper: DEIS assessment of health of

populations and estuary “overly sanguine” - system

actually far from equilibrium with several species in

decline; shad and tomcod deserve “more sober

assessment” of current low levels

Scenic: plants have killed billions of fish over last 20

years; evidence of long-term declines
TOPIC 

\

PUBLIC 

COMMENTS

Page 40 of 93

3. Several commentors

question one or more of

the assumptions used in

one or more of the 

population models; in

particular, densitydependence is unproven.

DEC (@ hearing): accepting DEIS for comment

doesn’t mean agency agrees with it

EA: concur with Riverkeeper’s conclusion that

assumptions for models are flawed so underestimate

impacts of plants on Hudson River fish; because

analyses do not include pre-power plant conditions,

no basis for saying plants have not changed

conditions

PISCES: large changes in fish species abundance

over time plus small decrease in total species

richness/diversity suggest that Hudson estuary far

from equilibrium; density-dependence unproven,

and in SB probably causes serious understatement

of importance of numbers of fish killed; by assuming

density-dependence and not considering other

factors, models ignore disproportionate impacts of

reductions in strong year classes

Riverkeeper: model does not accurately represent

impacts of entrainment so should not be basis for

decisions; does not account for year-to-year

variability in year class strength; models force-fit

some data, with biased or unsupportable

conclusions

4. Climate, disease, and

the changing ecology of

the Hudson River system

are not considered in the

population models 

ASA: 20+ years of studies and data are represented

in the DEIS

DEC (@ hearing): accepting DEIS for comment

doesn’t mean agency agrees with it

Jacobs - M: cites Croton Landfill cleanup

NMFS: SB analyses neglect other factors in

assessing current abundance - need to take a wider

view 

Riverkeeper: their experts conclude that the DEIS

‘contains a naive ecological analysis which

completely ignores the role of climate and disease in

determining population’

5. Thermal analyses

need to be updated to

reflect recent, more

extreme conditions 

PISCES: use of 1981 thermal data for far-field

model may seriously underestimate thermal impacts

Riverkeeper: thermal model based on older data so

don’t reflect extreme summer conditions of later

years; DEIS does not address general warming in

Hudson estuary
TOPIC 

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PUBLIC 

COMMENTS

Page 41 of 93

FISH PROTECTION POINTS

6. Fish protection points

(FPP) would provide

operational flexibility

but even less protection

than conditions in the

Hudson River Settlement

Agreement (HRSA)

ASA: existing technologies at all 3 plants plus

proposed operating schemes would achieve future

fish protection levels similar to those required in last

20 years

DEC (@ hearing): accepting DEIS for comment

doesn’t mean agency agrees with it

EA: HRSA levels not sufficient level of protection;

FPP likely to lead to larger fish kills so is not sound

approach 

NMFS: FPP are comparable to HRSA standards, but

those standards were only intended to be interim

and should not now be considered as meeting

objectives of the Clean Water Act (CWA); should be

looking to “... build[s] on the prior successes rather

than simply taking advantage of them”

NRDC: DEIS scheme would weaken fish protection

in Hudson

PISCES: FPP appear designed more to benefit power

plants than fish and may result in increased

entrainment and impingement mortality; “banking”

between years could lead to excessive population

impact if critical year classes hit by disproportionate

entrainment

Riverkeeper: their experts conclude that FPP system

is really just a way to trade credits and has “serious

weakness and seems designed to aid power plant

profitability rather than to protect fish”; could

actually result in greater harm being inflicted on fish

populations, for example, trading credits among

years could lead to devastating impacts on strong

year classes; represents an extreme initial

negotiating position

Scenic: concur with NRDC & Riverkeeper;

continuation of Settlement Agreement conditions

not acceptable objective; DEIS scheme would

weaken fish protection in Hudson
TOPIC 

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PUBLIC 

COMMENTS

Page 42 of 93

MITIGATION

7. DEIS includes little

information on acoustic

deterrence and barrier

systems.

PISCES: insufficient information on acoustic

deterrents

8. DEIS significantly

overstates costs and

energy impacts of closed

cycle cooling

NRDC: have changed opposition to cooling towers

with changes in technology since the 1970's

NYRU: cooling tower analyses should include more

analysis of their potential environmental impacts 

Riverkeeper: cooling technology changes have

eliminated prior objections to towers
TOPIC 

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PUBLIC 

COMMENTS

Page 43 of 93

9. DEIS alternatives and

proposed action do not

present a fair picture of

available alternatives

ASA: once-through with protection measures best

balance of all interests

CHV: tragedy to allow continued killing of billions of

fish by antiquated cooling technologies; require

plants to be brought up to modern standards

COE: look at boom in Tompkins Cove

DEC (@ hearing): accepting DEIS for comment

doesn’t mean agency agrees with it; draft permits

and supporting documents will consider multiple

alternative technologies

Downs: plants should get on schedule to either

convert to dry cooling or close

NMFS: alternatives discussion weakened by

presumption that “cropping” aquatic resources by

power plants is acceptable; accepting these

proposals would not meet CWA obligation to protect

public trust resources

NYRU: Gunderboom ® should be included in DEIS;

incorporate results of river flow pattern research

into mitigation alternatives; restoration projects

must be regional in scope and on same scale as

impact

PISCES: insufficient treatment of barriers

Riverkeeper: their experts conclude that the DEIS

“constructs an argument in favor of the lack of

impact ...”; DEIS provides no basis for concluding

that mitigation measures should be accepted instead

of closed-cycle cooling - technology and policy have

advanced to point where [continued] fish mortality

at power plants is an unnecessary anachronism

Scenic: DEIS does not consider pre-plant conditions;

permits should require closed-cycle or 32-week

outages
TOPIC 

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PUBLIC 

COMMENTS

Page 44 of 93

OTHER TOPICS

10. The DEIS needs to

consider effects of New

York’s recent conversion

to a competitive energy

market, take the State

Energy Plan into

account, or impose

parity among facilities.

Downs: if permits create easier standards for older

plants, competitive market will not shift generation

to newer, less-impacting plants

EA: conversion to market system means there will

be pressures to run as much as possible so

imperative that renewal permits include conditions

“highly protective of Hudson River fish ...”; in

deregulated market, there would be increased

incentive for these plants to run in preference to

newer, more protective units unless these plants are

compelled to retrofit to closed-cycle or shut down

Gordon/Kennedy/Lee: competitive market increases

urgency to impose environmental controls on older

facilities

NRDC: should be parity of permit conditions

between these “old” and newer plants on Hudson;

look to Athens decision for model; need to now

move rapidly to final decision

NYRU: outages or reduced operations can be

“alternatives to reduce cooling water use”, but

deregulated market may make harder to control or

achieve so should factor that uncertainty into permit

terms or conditions

Riverkeeper: need to follow Athens decision model

and truly minimize impacts
TOPIC 

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PUBLIC 

COMMENTS

Page 45 of 93

11. Radiation

discharges are not

discussed in the DEIS,

but should be.

Baiman: history of radiation discharges causes

multiple concerns (cites NYS Health Department

reports); should shut down all the nuclear plants

EA: submitted NYS Health Department radiation

survey numbers

Elie: [DEIS] should consider radiation

Gabrielle: wants more information on radiation

impacts especially on reservoirs; do not renew

Indian Point permits

Jacobs - B: monitoring of leak from Indian Point 1

should be included in this permit

Jacobs-M: EIS needs to consider radioactive

discharges, including results of monitoring reports

from NYS Department of Health which show

increased levels in summer; renewals should

prohibit all pollutant discharges 

Likes: concerned that any radioactive release is

permissible; prefer that plants be closed; actual

discharge should be monitored for radioactivity

Schepart: should consider reports by NYS DOH on

radiation levels in Hudson - records show radiation

discharges in excess of health limits; should include

radiological limits in new permits

Weinstein: look at radioactive discharges and

chemicals used in piping system
TOPIC 

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PUBLIC 

COMMENTS

Page 46 of 93

12. Several commentors

expressed generalized

opposition to renewal

for one or more facilities

Carlin: downwind - close Indian Point

Downs: ironic to be looking at continuation of these

withdrawals in face of Athens decision

Goodman: do not permit Indian Point

Jacobs - S: evacuation plans appear inadequate;

laws should be fully enforced

Jordan: don’t renew Indian Point - poorly

maintained facilities should be shut down

Mirabito: do not issue permits

Moon: concerns with Indian Point plant safety

(radiation leaks, old equipment); shut the plant

down

Nelson-Epstein: close Indian Point

Riverkeeper: 10-year SPDES permit term as

proposed in DEIS would be illegal; thermal

discharges, at least at Indian Point, do not meet

water quality standards so should not renew

permit(s)

Scenic: power plant entrainment & impingement not

a valid use of resources; 10-year permit would be

illegal

Smallev: move from unconscionably hazardous

energy sources; shut plants down

Wren: oppose nuclear power so don’t renew Indian

Point permit
Page 47 of 93

List of Commentors

Oral Comments 

Benas, Richard (DEC) for NYS Department of Environmental Conservation

Clempner, Jean

Downs, Roger with Susquehanna shad restoration project

Elie, Marilyn of Westchester Citizens Awareness Network

Gabrielle, Susan

Hudson Riverkeeper (Riverkeeper) by David Gordon, Esq.

Jacobs, Barbara

Jacobs, Mark of Westchester Greens and of WESTPAC (Westchester People’s Action

Coalition)

Jacobs, Stanley

Kennedy, Katherine for Natural Resources Defense Council (NRDC)

Lee, Cara for Scenic Hudson (Scenic)

Likes, Philip

Moon, Dan

Schepart, Margo of Westchester Citizens Awareness Network

Smallev, Jillian [phonetic sp, from transcript]

Weinstein, Lucille

Young, John (ASA) for generators/utilities

Written Comments

Baiman, Sydney

Carlin, Lynne

Citizens for the Hudson Valley (CHV) by Dimitri Sevastopoulo

Environmental Advocates (EA) by Kyle Rabin

Gabrielle, Susan

Goodman, Sidney J.

Hudson Riverkeeper (Riverkeeper) by David Gordon, Esq.

Jacobs, Mark of Westchester Greens and of WESTPAC (Westchester People’s 

Action Coalition)

Jordan, John of Catskill Alliance for Peace

Likes, Philip

Mirabito, Stephen

National Marine Fisheries Service (NMFS), by Michael Ludwig

Natural Resources Defense Council (NRDC) by Katherine Kennedy

Nelson-Epstein, David

New York Rivers United (NYRU) by Ivan Vamos

PISCES Conservation Ltd (PISCES) by Peter Henderson, Ph.D., for Riverkeeper, 

Scenic Hudson, and Natural Resources Defense Council

Scenic Hudson (Scenic) by Cara Lee

Schepart, Margo 

U. S. Army Corps of Engineers (COE), by Richard L. Turner

Wyler, Megan
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Page 49 of 93

RESPONSES TO COMMENTS

Consolidated responses follow to each of the comment themes identified in Table 3

(preceding). Each topical response is considered to reply to all of the comments

identified within that theme group.

Fish Populations - 1. “Cropping” (that, is, consumption of

some portion of one or more populations) by power plants is

not a legitimate use of NYS’s fisheries and other aquatic

resources.

Some commentors have suggested that fish populations should not be “cropped” by

power plants. In other words, they object to any argument that electric generating

facilities be permitted to cause injury or death to any life stages of fish and other

aquatic organisms, provided only that specified populations of adult fish of selected

species be maintained. 

The Department agrees that fish should not be “cropped” by power plants. Instead,

the Department asserts, and is supported through statute, regulation, policy and

practice, that it is in the public interest to minimize the loss of fish and other aquatic

resources at electricity generation facilities. The Department further asserts that

significant impacts to aquatic resources are not an inevitable result of electric power

generation.

The mission of the Department is to provide for the best uses of the State’s waters

and of its fish and wildlife resources. These resources belong to the people of the

State and are held in trust for the use and enjoyment of current and future

generations of New Yorkers. The Department’s obligations regarding fish and wildlife

are described in ECL Articles 11 and 13; its obligations regarding the waters of the

State are described in ECL Articles 15 and 17. (See also FEIS Regulatory Setting -

Legislative Findings and Commissioner’s Powers.)

The State’s fish and wildlife

Fish and wildlife are the property of the State but numerous uses of fish and wildlife

which result in their deaths are permitted. Recreational and commercial fishing,

hunting, trapping, scientific collection, and relief from nuisance or damage are

examples. In each instance, the permissible methods of take are defined explicitly

in statute or regulation.

Fishing, hunting, trapping and scientific collection are highly regulated. The species,

age (or its surrogate, size) and sometimes even the sex of the animal to be taken

are specified. The time of year is also determined for most species of game, through

“open seasons.” Generally, breeding seasons are avoided and the “crop” of fish or

wildlife is made available to its human consumers when populations are highest or

the values in flesh or fur are at their peaks. In order to ensure that populations are
112 Copies of letters in Appendix F-V.

113 6 NYCRR Parts 800 - 941.

114 See 6 NYCRR § 701.9

Page 50 of 93

not over-exploited, populations are monitored, either directly or indirectly. At a

minimum, the goal of management for such harvested species is to ensure

sustainable populations.

Similar considerations apply when permitting the destruction of wildlife which pose a

threat to human safety or property. Generally, the taking of such wildlife is

permitted either as a last resort or where the magnitude of the take is believed to be

insignificant to the species’ population or its ecological function. 

That fish should not be wasted as a part of energy production was made clear by

former Commissioner Jorling, in 1991 letters to the generators, in which he stated: 

“The inadvertent mortality of fish by utilities is not a legitimate use of fishery

resources. Therefore, the Department will not allocate a portion of fishing

mortality to utilities and will seek elimination if possible, and otherwise

minimization, of mortality caused by utilities...”.112

The State’s waters

The waters of New York, too, are the property of the State. Numerous uses are

recognized and permitted. New York’s waters are used for human consumption,

recreation, agriculture, industry, commerce, navigation, and as habitat for fish and

wildlife. New York State laws and regulations recognize these uses and provide a

regulatory framework which ensures that water quality is maintained at levels which

can support particular uses. Generally, the “cleaner” waters are classified for those

activities which require the highest water quality, such as for drinking. The goal of

the regulatory program is to maintain or improve water quality to enable the

designated “best usage.”113

The waters near the Hudson River plants have been classified as either Class A, B, C,

SB, or SC. Each of these classifications has “fishing” as at least one of the

designated best use(s). Each also includes the condition that, “... These waters shall

be suitable for fish propagation and survival ...”. 

Historically, the water classification system recognized industrial cooling and process

water as “best usages” for Class D water supplies. The listing of these activities as

“best usages” was removed by amendments to the regulations prior to 1972. 

Currently, the least protective designation in NYS is Class D. In fresh surface

waters, the best usage of even Class D waters is fishing and the waters must be “...

suitable for fish survival ...”. 114

If a water cannot achieve the usages for which it has been designated, it is deemed

to be impacted. Pursuant to § 305(b) of the CWA, the Department biennially

publishes a report on the State’s water quality which, among other things, describes
115 CWA § 305(b); 33 U.S.C. § 1315.

116 Deriso, R., K. Hattala & A. Kahnle, 2000. Hudson River Shad Assessment

and Equilibrium Calculations: Revision of the 1995 Report to include data through

1997. In: ESSA Technologies, Ltd. 2000. Review of the Draft Environmental Impact

Statement for SPDES Permits for the Bowline Point 1 & 2, Indian Point 2 & 3, and

Roseton 1 & 2 Steam Electric Generating Stations. Report to the Parties to the

Application. Prepared by ESSA Technologies, Ltd., Richmond Hill, ON, for NYSDEC,

Albany, N.Y. 31 pp. plus appendices.

117 See Atlantic Tomcod and Rainbow Smelt discussions under response 4 in

this section of the FEIS.

Page 51 of 93

such impairments.115 The NYS Water Quality Report for 2002 lists the Hudson River

downstream from the federal dam at Troy as being impacted by cooling water use by

power plants. As discussed more thoroughly below and in several other responses,

the effects of the use of Hudson River water for generating plant cooling include the

loss each year of a substantial percentage of annual fish propagation. Under

alternative density-dependent hypotheses, maximum sustainable yield of shad could

double if entrainment mortality at all generation facilities was eliminated.116 Thus,

current levels of impingement and entrainment impair and may preclude the best

usage components of propagation and survival. The thermal effects of power plants

on Atlantic tomcod and rainbow smelt also appear to preclude or impair fish

survival.117

Ecosystem values

Numerous public agencies have formally recognized the especially significant values

of the Hudson’s fisheries. For example, the NMFS has designated the Hudson an

Essential Fish Habitat, in recognition of the role it plays in maintaining 34

commercially important fish species. The National Oceanic and Atmospheric

Administration has designated four sections, Piermont Marsh, Iona Island, Tivoli

Bays and Stockport Flats, as a National Estuarine Research Reserve. NYS 

Department of State has designated 41 sections of the Hudson as significant tidal

habitat, and the USFWS has recognized a number of regionally significant habitats

along the River, including Papscanee Marsh, Vosburg Swamp and the Esopus

Estuary. 

Impacts on the aquatic community

Hudson River fish populations have been studied both intensively and extensively. 

Survival and mortality investigations have been conducted over long periods of time

to measure the impacts, primarily mechanical and thermal, of the power plants on

particular fish populations. Although the DEIS asserts that the generating facilities

have caused no harm to the aquatic community, numerous findings suggest

otherwise. Henderson and Seaby (2000) summarize the differing views:

“The DEIS concludes that there is no evidence of community change

that can be attributed to the power stations. ‘While changes in the

composition and abundance of this fish community have been observed,
Page 52 of 93

all appear attributable to factors other than power plant operations.’

(VI-36) Second, a key conclusion in the DEIS is that the Hudson

ecosystem is healthy. For example, the DEIS states: ‘The relatively

large number of taxonomic groups collected in these surveys as post

yolk-sac larvae demonstrates that the Estuary is a species rich

environment and is consistent with the Hudson being [a] healthy

ecosystem.’ (V-159). The conclusion relies on no particular measure of

ecological quality and probably represents a simplistic assumption that

because there are many fish present it must still be in good health. 

This observation would be more convincing if it considered how many

species would be expected in the estuary in a completely natural state.

... 

“From these observations it is concluded that: ‘the fish community in

the system remains healthy and robust’ ([1999 DEIS] Section VI page

36). All the observed changes are attributable to causes other than

those linked to the operation of power plant[s] including, water

chestnut growth, zebra mussel invasion, changes in commercial fishing,

increases in salinity and improved water quality in New York harbour.

“The available facts can be interpreted differently. The following

account better reflects the available data.

“Large temporal changes in fish species abundance together with a

small decrease in total species richness and diversity suggest that the

Hudson estuary ecosystem is far from equilibrium. There is a small

long-term decline in both species richness and diversity within the fish

community. These losses are not confined to rare or infrequent

visitors. A number of common or once abundant fish have long-term

trends of declining abundance including tomcod, Atlantic sturgeon,

bluefish, weakfish, rainbow smelt, white perch and white catfish. The

rate of decrease in abundance of a number of these species is in their

[sic] range of 5-8% per annum. If these trends were to continue, they

will quickly result in profound changes in the fish community.

“Since the improvement in water quality in New York harbour [from

sewage treatment plant completion], blue crab, Atlantic silversides and

striped bass have increased in abundance. In the case of striped bass

this is probably related to a decrease in fishing pressure as well as

increased habitat for juveniles at the mouth of the estuary. The power

stations can affect the fish populations by increasing mortality,

principally via entrainment, so that the populations are no longer able

to fully replace themselves. For the species which breed in the Hudson

estuary and have young stages vulnerable to entrainment, the

estimated power station mortality rate is sufficiently high to cause a

significant reduction in adult numbers.

“Because the tomcod is a short-lived fish which stays for its entire life

within the Hudson estuary, is not commercially fished and suffers the

highest level of entrainment mortality of any fish in the estuary, it is a

key species to study for the detection of power station effects. The
118 Henderson, P. A. and R. M. Seaby , 2000. Technical Comments on the

Draft Environmental Impact Statement for the State Pollutant Discharge Elimination

System Permit Renewal for Bowline Point 1 & 2, Indian Point 2 & 3, and Roseton 1 &

2 Steam Generating Stations. June 2000, Pisces Conservation Ltd. (PISCES report;

included in App. F-I.)

Page 53 of 93

population of this fish is in long-term decline and entrainment losses

must be considered a probable contributory cause. This would not be

the case if strong density-dependence were operating after the early

juvenile stages. However, there is no compelling evidence in favor of

density-dependence and good reasons to believe it is not operating. 

Not least of which is the rapid decline in abundance.

...

“In conclusion, it is not possible to dismiss the influence of the power

plants on the fish community, particularly when it is proposed to further

increase fish mortality rates. The present community is far from

equilibrium and undergoing considerable change. The DEIS’s simple

declaration [of] it as ‘healthy’ is a complacent over-generalization.” 118

The aquatic resource mortality from power plants is not comparable to the “selective

cropping” that occurs in a regulated fishing or hunting season. Under such

regulation, only selected species are harvested, and the forage base remains intact

or is improved because fewer individuals higher on the food chain are available to

consume lower food chain organisms. Furthermore, fishing and hunting seasons are

generally established during that part of the annual cycle which provides both 

maximum benefit to the users and ensures the sustainability of the population. 

Mortality at these Hudson River power plants is not limited to a specific, benign

season; it occurs throughout the annual cycle, whenever the plants operate their

“once-through” pumps. Finally, although impingement and entrainment mortality is

measured, it is typically measured only for several of the 140 species of fishes found

in the Hudson. Information about the impact on the full suite of aquatic organisms

is limited.

Rather than “selective cropping”, the impacts associated with power plants are more

comparable to habitat degradation; the entire natural community is impacted. 

These “once-through cooling” power plants do not selectively harvest individual

species. Rather, impingement and entrainment and warming of the water impact

the entire community of organisms that inhabit the water column. 

For example, these impacts diminish a portion of the forage base for each species

that consumes plankton (drifting organisms in the water column) or nekton (mobile

organisms swimming through the water column) so there is less food available for

the survivors. In an intact ecosystem, these organisms serve as compact packets of

nutrients and energy, with each trophic (food chain) level serving to capture a

diffuse resource and make it more concentrated. Ichthyoplankton (fish eggs, larvae

and very small fish which drift in the water column) and small fish feed on a base of

zooplankton (drifting animal life) and phytoplankton (drifting plant life). The loss of

these small organisms in the natural community may be a factor that leads to
119 Capriulo, G. M., G. Smith, R. Troy, G. H. Wikfors, J. Pellet, and C. Yarish.

2002. The planktonic food web structure of a temperate zone estuary, and its

alteration due to eutrophication. Hydrobiologia 475/476: 263-333.

120 HydroQual, Inc. 1999. Modeling the Entrainment of Passive Particles Into

Hudson River Power Plants. For Orange and Rockland Utilities, February 1999, by

HydroQual, Inc., Mahwah, NJ.

121 From HydroQual, 1999.

122 HydroQual, 1999.

Page 54 of 93

harmful algal blooms.119 The small fish themselves serve as forage for the young of

larger species, which serve as forage for larger individuals, and so on up the food

chain, more correctly understood as a “trophic pyramid”. 

Once-through cooling mortality “short-circuits” the trophic pyramid and compromises

the health of the natural community. For example, while an individual bay anchovy

might ordinarily serve as food for a juvenile striped bass or even for a common tern,

entrainment and passage through a power plant’s cooling system would render it

useful only as food to lower trophic level organisms. It could no longer provide its

other ecosystem functions of consuming phytoplankton, digesting and concentrating

it into its tissues, and ranging over a wide area, distributing other nutrients as

manure. This is just a single example from a very complex natural system, where

the same basic impact is multiplied millions of times over more than one hundred

fish species.

The direct reduction of the quantity of organisms within the water column by water

intakes is known as draw-down. The draw-down of organisms can be understood

from the work which HydroQual performed for one of the generators to quantify

probabilities of entrainment or re-entrainment for passive particles such as

plankton.120 This study produced multiple profiles of the velocities at various depths

across multiple sections of the Hudson in the vicinity of the HRSA generating

stations. The measurements were done continuously through time and gave an

hourly, three-dimensional profile of water particle travel through time and space in

the Hudson; both high flow and low flow conditions were considered. Figures 4 and

5 demonstrate the probability of any single egg or larva or other plankton organism

being entrained within seven days of momentarily occupying a single location.121 

The actual draw-down is likely even greater because the three HRSA generating

plants (combined with other facilities in the same river reaches) act cumulatively on

the entire aquatic community; many organisms live in this reach of the River for

more than seven days; and any organisms coming from upstream, such as tomcod,

would also be subject to the draw-down from the Danskammer and Lovett Stations

(located in the same river reach but not part of the HRSA nor the subject of this

FEIS; see Fig. 2 at end of Regulatory Setting). The most important effect of

drawdown is that it dramatically reduces food availability within the ecosystem and,

thus, survivability of multiple species over significant stretches of the Hudson River.
Fig. 4. Entrainment Probability at Low Flow122

Page 55 of 93
123 HydroQual, 1999.

Page 56 of 93

Fig. 5. Entrainment Probability at High Flow123
124 Dey, W., S. Jinks and N. Decker, 2003. Changes in the Fish Community

Throughout the Hudson River Estuary. At Hudson River Environmental Society

Presents: Hudson River Fishes & Their Environment. March 20-21, 2003, Marist

College, Poughkeepsie, NY. No published proceedings.

125 ASA Analysis and Communications. 2002. 1999 Year Class Report for the

Hudson River Estuary Monitoring program. August 2002.

126 Wells, A. W. 2003. Status of White Perch in the Hudson River. At

Hudson River Environmental Society Presents: Hudson River Fishes & Their

Environment. March 20-21, 2003, Marist College, Poughkeepsie, NY. No published

proceedings. 

Page 57 of 93

Fish Populations - 2. Many species in the Hudson River system

are actually declining. While the striped bass (SB) population

is up, that increase may be the result of other management

decisions and activities. Historic baseline or trend data is not

substantially discussed. 

In Section VI (p. 36), the DEIS concludes that “...the fish community in this system

remains healthy and robust, and consistent with that expected in a large temperate

estuary like the Hudson.” It further states that “While changes in the composition

and abundance of this fish community have been observed, all appear attributable to

factors other than power plant operation.”

The Hudson River has been the subject of more than 25 years of fisheries

investigations, and, as such, is one of the most intensively studied rivers in the

world. These studies have revealed that, although overall species richness (the total

number of species) is high, with more than 200 species recorded, diversity (which

incorporates consideration of abundance and distribution amongst the species) is

relatively low; most of the River’s fish production is concentrated among a few of

these species. Overall species richness and overall abundance of fish larvae in the

river have increased since 1974. However, increases in species richness are mainly

due to an increase in use of the River by marine species, and increases in abundance

can be attributed to increases in but two species, striped bass and Atlantic

silversides. Species richness and abundance in both young-of-year and older fish

have decreased over this same period, especially among freshwater species, as

described below.124

Several species of fish in the Hudson River estuary, such as American shad, white

perch, Atlantic tomcod and rainbow smelt, have shown trends of declining

abundance.125 The American shad stock in the Hudson river has been in decline

since the early 1990's. White perch eggs, yolk-sac and post yolk-sac larvae

abundance has remained stable since the mid 1980's; however, indices of young-ofyear and older fish have shown declines since the late 1970's.126 Atlantic tomcod

juvenile abundance has shown no trend, but adult abundance over the last 10 years

has been lower than in previous years and continues to show high interannual
127 Young, J., M. T. Mattson , Q. E. Ross and D. J. Dunning. 2003. 

Population Fluctuation of Atlantic Tomcod in the Hudson River Estuary. At Hudson

River Environmental Society Presents: Hudson River Fishes & Their Environment. 

March 20-21, 2003, Marist College, Poughkeepsie, NY. No published proceedings.

128 The “long river”, or Longitudinal River Ichthyoplankton Survey (LRS)

encompasses the entire length of the Hudson River Estuary, from the Battery (River

Mile, RM, 1) to the Federal Dam in Troy (RM 152). The LRS yields ichthyoplankton

data to support calculations of standing crop, temporal and geographical indices, and

growth rates for selected Hudson River species (Atlantic tomcod, American shad,

striped bass, white perch and bay anchovy). LRS sampling is concentrated during

the spring, summer and early fall when eggs and larvae of the selected species have

been historically abundant.

Fall Shoals Survey (FSS) samples are collected every other week from the Battery to

the Federal Dam in Troy from mid-summer through the fall. The FSS objective is to

provide data on young-of-year (YOY) fish to support calculation of standing crop and

temporal and geographical indices of for selected Hudson river species (Atlantic

tomcod, American shad, striped bass and white perch). From ASA 2002.

129 Strayer, D. L., N. F. Caraco, J. J. Cole, M. L. Pace, S. Finlay, K. A. Hattala,

and A. W. Kahnle. 2003. Ecological Changes From Two Recent Species Invasions in

the Freshwater Tidal Hudson River. At Hudson River Environmental Society

Presents: Hudson River Fishes & Their Environment. March 20-21, 2003, Marist

College, Poughkeepsie, NY. No published proceedings.

Page 58 of 93

variability.127 Rainbow smelt have been virtually absent from the collections from

the long river and fall shoals surveys since 1995.128

Declines in the abundances of several species and changes in species composition

raises concerns and questions regarding the health of the River’s fish community. 

The Hudson River environment has undergone a number of significant changes in

recent decades. In addition to changes directly attributable to power plants, these

changes include: water quality, especially as a result of major improvements in

sewage treatment; invasions by exotic species such as water chestnut and zebra

mussels; hazardous substances contamination, especially PCBs, organochlorine

pesticides and heavy metals; global climate change, which includes both increasing

annual mean temperatures and higher frequencies of extreme weather events; and

the management of individual species, such as striped bass, which have undergone

strict regulation for both the recreational and commercial fisheries. Each is a

stressor, to a greater or lesser extent, on the River’s biota. For example, the zebra

mussel invasion, which began in 1991, is thought to have caused very large

reductions in the biomass of plankton and non-zebra mussel macroinvertebrates. 

Overall, it is estimated that the biomass of these forage invertebrates has dropped

by approximately 50 percent, leading to large changes in the fish community.129 

The impingement, entrainment and thermal impacts caused by the HRSA facilities

are well-documented elsewhere in this FEIS and in other portions of the HRSA

proceedings. The millions of fish that are killed by power plants each year represent

a significant mortality and are yet another stress on the River’s fish community. 

Although the primary cause of these population changes cannot conclusively be

attributed entirely to the operation of these three steam electric generating stations,

the mortality that they cause must be taken into account when assessing these

population declines.
130 The Dictionary of Ichthyology, Brian W. Coad and Don E. McAllister,

Revised: 13 May 2003, provides the following definitions:

Density dependence = the dependence of a factor influencing population dynamics

(such as survival rate or reproductive success) on population density. The effect is

usually in the direction that contributes to the regulative capacity of a stock. 

Compensatory survival = a decrease in the rate of natural mortality that some fish

show when their populations fall below a certain level. This may be caused by less

competition for food and living space.

For a general discussion of the concepts, see Boreman, John. 2001. Surplus

Production is a Myth. 10 pp. Included in Appendix F-V.

Page 59 of 93

Fish Populations - 3. Several commentors questioned one or

more of the assumptions used in one or more of the population

models; in particular, density-dependence is unproven.

The DEIS relies on fish population modeling to support the generators’ conclusion

that entrainment mortality is not significant for two species, tomcod and striped

bass, based upon compensatory density dependence.130 Bay anchovy do not have a

population model presented in the DEIS. However, a Production Foregone model

that is based upon data from the Chesapeake Bay predicts that bay anchovy

populations in the Hudson River could remain stable if there were an annual influx of

migrants from a general east coast population. A population dynamics model is not

presented for white perch in the DEIS. Thus, estimated impacts of entrainment and

impingement for this species are highly speculative. The American shad population

model in the DEIS shows significant variation in abundance between 1990 and 1997;

the stock apparently has not recovered from low numbers in recent years and may

be over-exploited unless high density-dependence is assumed. Models were not

prepared for other species.

The Department concludes that the models and analyses presented in the DEIS are

somewhat useful, but that there are significant questions and concerns regarding the

inputs and assumptions for each species analysis which may result in very different

conclusions than those presented in the DEIS. It is noteworthy that the analyses

and conclusions performed by three different sets of professional fisheries population

modelers, in three different countries and with different backgrounds, all point out

significant concerns within each model and that alternative results could easily be

presented. These modelers represent the generators, the Department and ESSA

Technologies, Ltd., and environmental organizations; this is a diverse group that is

not predisposed toward a common outcome. What is clear from the data and

analyses presented in the DEIS is that entrainment and impingement, primarily the

former, are eliminating a significant portion of the above-listed species in their egg

and larval forms, as well as many more species which spawn or spend part of their

life stages in the lower Hudson River. While it is reasonable to conclude that some

of these losses may be compensated for by increased survival of organisms not

killed, it is not possible to determine the impact of these losses on adult populations

with much confidence. 

Fisheries scientists are keenly aware of dramatic natural changes in fish populations,

both on an annual basis and long term. There are a great many natural reasons for

these changes. The Hudson River is a dynamic system with many environmental
131 ESSA Technologies, Ltd. 2000. Review of the Draft Environmental

Impact Statement for SPDES Permits for the Bowline Point 1 & 2, Indian Point 2 & 3,

and Roseton 1 & 2 Steam Electric Generating Stations. Report to the Parties to the

Application. Prepared by ESSA Technologies, Ltd., Richmond Hill, ON, for NYS DEC,

Albany, NY. 31 pp plus Appendices; the full set of ESSA reports is included as

Appendix F-V to this FEIS.

132 PISCES, 2000.

Page 60 of 93

parameters differing from apparently natural causes each year. Flow, temperature,

salinity, dissolved oxygen, nutrients and others fluctuate markedly. Many of these

same parameters are influenced by human activities, too. Addition or deletion of

pollutants, invasion by exotic species of plants and animals, habitat management,

and fishing pressure and regulations all combine with the withdrawal of billions of

gallons of water each day, for cooling purposes at steam electric stations as well as

for other industrial or public water supply uses, and with very large amounts of

thermal inputs, to contribute to changes in the River. Attempts to identify, measure

and understand specific impacts are complicated by the array of interacting and

potentially confounding variables. The inherent uncertainties of data management

and especially population models cast further doubt on available information and

analyses.

Data in the 1999 DEIS and comments on the topic of population dynamics and

modeling identify entrainment rates for fish eggs and larvae as significant impacts. 

They also indicate that neither the terms of the HRSA and subsequent Consent

Orders nor the applicants’ proposed actions would reduce this impact to levels

consistent with BTA requirements. The body of analyses in the fish population

models presented in the DEIS indicates that the models overestimate the role of

density dependence and thereby underestimate impacts associated with entrainment

and impingement. This leads the Department to conclude that this modeling effort

alone will not conclusively show whether or not fish populations are significantly

affected by entrainment and impingement. Therefore, the Department has

determined to not rely on these models to make conclusions for this FEIS or for the

SPDES permits to be issued for each of the three HRSA power plants.

Detailed reviews of population dynamics models are presented in the ESSA

Technologies, Ltd. report Review of the Draft Environmental Impact Statement,

dated October 20, 2000, and the reviews of the Atlantic Tomcod, Bay Anchovy,

Striped Bass, and American Shad models appended to it.131 Additional comment on

the models, as well as other topics, was provided by Dr. Peter Henderson of Pisces

Conservation, Ltd. representing the Riverkeeper, Scenic Hudson and NRDC.132
133 1999 DEIS, p. V-43, Figure V-65

134 1999 DEIS, p. VI-11

135 Parnell, I., D. Marmorek, and R. Deriso. 2000. Review of the Assessment

of Atlantic Tomcod. Companion Report to Chapter 3 in ESSA, 2000.

136 Conditional Entrainment Mortality Rate (CEMR) is the probability of a fish

dying from passage through the cooling water system of a power plant. It is

expressed as a percentage and measures how many fewer Hudson River fish exist at

the end of their first year of life (actually at September 1) than would exist if not for

the loss to entrainment. The actual computations are based on measurements of

mortality rates of all life stages of fish. These stages include eggs, larvae, juveniles

and even some small adults; larger fish usually do not become entrained because

they can swim well enough to escape from the intake current or are protected by

mechanical devices such as racks or screens installed expressly to prevent

entrainment. Because much of the raw data involves early life stages, the mortality

rates of eggs and larvae are "normalized" to a rate expected of young-of-the-year

fishes on September 1. This statistical process is based on existing information

about expected mortality (or its inverse, survival) of each life stage from natural

causes, such as predation. 

This survival information varies among species. For most species, natural mortality

of early life stages is very high. For example, for striped bass, about 75 percent of

eggs die before they hatch to become yolk sac larvae. Similarly, mortality can be as

high as 89 percent as the yolk sac larvae mature to become post-yolk sac larvae. 

This natural attrition continues throughout the life cycle. Typically, only twohundredths of one percent of striped bass eggs would survive to become juveniles on

September 1; this is a survival rate of .0002. The CEMR, then, accounts for such

natural mortality rates when it is used to calculate mortality attributable to

entrainment at power plants. 

See Public Service Electric and Gas Company (PSE&G). 1999. 316(b) Demonstration

for the Salem Nuclear Generating Station. Appendix L in Application for Certification

of a Major Electric Generating Facility Under Article X of the New York State Public

Service Law, Appendix 8b. 2000. TRC Environmental for KeySpan Energy.

Page 61 of 93

Atlantic Tomcod

The Atlantic Tomcod population in the Hudson River appears to be declining rapidly. 

This conclusion is supported in the DEIS by 1989-97 early life-stage data.133 The

DEIS further asserts that, “... Adult abundance in recent years is distinctly lower

than it was in the 1970s ...”.134 Because this species is at the southern edge of its

geographic range, observed declines could be the result of increasing river

temperatures, whether from thermal discharges, global climate change, or other

unidentified factors. Nevertheless, the population stability predicted by the

population model in the DEIS is predicated upon a conclusion that significant

density-dependent mortality occurs for this species at the life stage after most

entrainment mortality has occurred. If the conclusion proves to be based upon

limited data or errors in analysis (as suggested by ESSA Technologies, Ltd. in their

initial DEIS review),135 then the Hudson River tomcod population is not determined

by this density-dependent mortality and the generators proposed actions could

instead increase the conditional entrainment mortality rate (CEMR) of this species.136
137 See also Everly, A. W. and J. Boreman. 1999. Habitat use and

requirements of important fish species inhabiting the Hudson River Estuary:

Availability of Information. NOAA Tech. Memorandum NMFS-NE-121. US Dept. of

Commerce, National Marine Fisheries Service, Northeast Fisheries Science Center,

Woods Hole, MA.

http://www.nefsc.noaa.gov/nefsc/publications/tm/tm121/tm121.pdf

Of the 140 species that occur in the Hudson River Estuary, Everly and Boreman also

chose Atlantic Tomcod as one of their 11 representative species for their study. 

Tomcod were chosen as important and representative of the fish community of the

Hudson River as euryhaline nonmigratory species. The life history synopsis on p.14

illustrates the exposure of this species to entrainment, impingement, and thermal

pollution impacts from once-through cooling, by virtue of its life cycle in the Hudson

River.

138 Deriso, R., D. Marmorek, and I. Parnell. 2000. Review of the Assessment

of Striped Bass. Companion Report to Chapter 5, in ESSA, 2000.

139 Deriso et al, 2000.

140 Parnell, I. and D. Marmorek. 2000. Review of the Assessment of White

Perch. Companion Report to Chapter 6, in ESSA, 2000.

Page 62 of 93

Population declines could continue and ultimately result in the elimination of this

species in the lower River.137

Striped Bass

The DEIS presents arguments in support of the generators’ proposed action, and the

resulting mortality of this species due to entrainment and impingement, that are

based upon the assumption of strong density dependence within the striped bass

population in the Hudson River. ESSA Technologies, Ltd. has noted that this

conclusion is based upon data and model assumptions that, if not faulty, may not be

the only data and assumptions that could be employed in the model.138 For

example, fishing mortality estimates presented in the model are inconsistent with

recent tagging analyses and stock assessments developed for Atlantic coast stocks.

139 An alternative analysis could be presented that indicates much lower densitydependence; such an indication would lead to a prediction of a much greater impact

from entrainment and impingement.

White Perch

A population dynamics model was not prepared for this species because the

Technical Workshops concluded that the data do not support development of a

defensible model. However, juvenile and age-1 abundance indices suggest that

white perch numbers in the Hudson River are declining.140 This contrasts with the

DEIS conclusion that the population appears resilient enough to sustain its

population in the future under similar levels of power plant mortality. These

conditional mortality rates (CMR) are stated to be approximately 21 percent over the

period of analysis presented. As with other species, use and interpretation of other

available information can easily result in very different conclusions regarding impacts
141 Appended to ESSA, 2000.

142 DEIS, p. V-101

Page 63 of 93

of entrainment and impingement. In their earlier reviews, the HRSA technical

workshops and the review by ESSA Technologies, Ltd. recommended that topics and

issues stemming from data limitations be considered in the DEIS analysis. This was

not done.

American Shad

American shad population impact analysis in the DEIS is based upon Hudson River

Shad Assessment and Equilibrium Calculations: Revision of the 1995 Report to

Include Data Through 1997, by Dr. Richard Deriso, Kathryn Hattala, and Andrew

Kahnle.141 Ms. Hattala and Mr. Kahnle are Department staff and Dr. Deriso is a

consultant to ESSA Technologies, Ltd., the Department contractor that assists in

review of population dynamics modeling, among other topics. This analysis was the

only model which employed more than one level of density dependence to determine

abundance. The DEIS concludes that the American shad population appears healthy

and able to sustain itself within the constrains of the proposed action. This is the

least conservative conclusion that can be drawn from the data presented. More

likely is the conclusion that the stock has not shown any recent recovery from very

low levels (“At the present time, shad stocks in the Hudson River are at an all-time

low” 142), and both entrainment and fishing mortality rates need to be minimized.

Bay Anchovy 

Bay anchovy population modeling presented in the DEIS was developed to analyze

this species in the Chesapeake Bay and used data from that water body, not from

the Hudson River. The model’s author, Dr. Kenneth Rose, presented many analytical

caveats that should be used in the application of the model; the model is very

sensitive to different assumptions. The discussion of the model results presented in

the DEIS, however, does not acknowledge these limitations. This model estimates

production foregone, in contrast to other population dynamics models. The analysis

overestimates the predatory demand of striped bass and bluefish because their

populations have increased so markedly and suggests that anchovy spawner

immigration serves to avoid population extinction caused by entrainment and

impingement in the Hudson; this immigration would come from the Atlantic coast

stock. This assumption appears to ignore entrainment and impingement impacts

from the many other coastal power plants which affect the coastal anchovy

population. Therefore, the conclusions concerning bay anchovy presented in the

DEIS are not sufficiently supported by the model.
143 ASA, 2002.

144 PISCES, 2000.

145 Kennedy, V., et al. 2002. Coastal and Marine Ecosystems and Global

Change. Prepared for the Pew Center on Global Climate Change, Arlington, VA.

Page 64 of 93

Fish Populations - 4. Climate, disease, and the changing

ecology of the Hudson River system are not considered in the

population models.

Any measurement of ecological impacts attributable to power generating stations is

confounded by the changing ecosystem itself. As will be discussed here and in

following sections, the Hudson River ecosystem has undergone numerous profound

changes in the last few decades, many of which are continuing. The population

models presented in the DEIS do not account for such fundamental and dynamic

ecosystem influences as climate, disease, water quality, flow and invasive species. 

For example, n the years since the 1999 DEIS was published, Atlantic tomcod have

continued to decline, contrary to the predictions of the model presented in the

DEIS.143 Rainbow smelt numbers, too, have declined significantly during this period. 

In addition, many assumptions in the model and the selective use of datasets for the

various models cast doubt on the validity of many of the conclusions presented in

the DEIS.144 For example, different years of data are used throughout the DEIS in

order to demonstrate a lack of correlation between post-yolk sac (PYS) and juvenile

fish of a selected species. Although the DEIS asserts that this relationship between

PYS and juveniles demonstrates density-dependent compensation, other, more

plausible explanations are available.

If one is to entertain the concept of density-dependent compensation as a

mechanism by which fish populations respond to changing stressors within their

environment, it must be evaluated against the many changes which can impact the

population, not only the indiscriminate cropping imposed by cooling water intakes. 

Even if density dependent compensation exists, it cannot be presumed that the

ability to make up for natural and anthropogenic induced mortality is infinite. The

factors above, which are only recent examples of changes affecting fish in the

Hudson, illustrate how many factors can consume portions of any compensation

ability fish populations may have.

Climate Change

Over the past decade a large body of data has been collected in a variety of scientific

disciplines which indicates that climatic changes are occurring on a global scale.145

Growing evidence suggests that temperature has increased over the past century at

an accelerated rate. One indicator of this change has been increased ocean

temperatures. Of the marine waters of the world, coastal areas and estuaries are

most susceptible to climatic changes due to their relatively shallow depth and

proximity to land. These coastal areas are also the most biologically productive as
146 Kennedy, 2002.

147 Ruggiero, R. Hudson River Temperature Data Collected at the City of

Poughkeepsie Water Treatment Facility. Unpublished; submitted to Department

March 6, 2003. Copy in Appendix F-V. 

148 Kennedy, 2002.

149 USEPA - New England, 2002. CWA NPDES Permit Determinations for

Thermal Discharge and Cooling Water Intake from Brayton Point Station in

Somerset, MA. July 22, 2002.

150 Buckley, J. L. 1989. Species Profiles: Life Histories and Environmetnal

Requirements of Coastal Fishes and Invertebrates (North American) Rainbow Smelt. 

USFWS Biological Report 82(11.106) TR EL-82-4.

Page 65 of 93

the majority of marine fishes spawn, and many mature in near shore or inshore

areas. Though estuaries only represent approximately 0.5 percent of the world’s

marine environment, they support about 5 percent of global fish production.146

Many scientists believe that the accelerated increase in global temperatures is due

primarily to anthropogenic impacts. Chief among these is the emission of

“greenhouse gases” produced by burning fossil fuels. The accumulation of these

emissions in the atmosphere causes air temperatures to increase; this indirectly

increases temperatures of oceans, estuaries and other surface waters. Because of

their proximity to land, estuaries and coastal waters are also directly influenced by

other human activities which may increase temperature, such as by storm water

runoff from impervious surfaces, wastewater effluent and cooling water discharges. 

A review of data collected over a 51-year period indicates increases in water

temperature of the Hudson River Estuary in the last half of the twentieth century.147

Very small changes in water temperature have been shown to affect many

species of fish, particularly during early life stages.148 Temperature changes may

influence spawning success, early life stage development, and survival of

ichthyoplankton and adults.149 Most vulnerable would be cold water species, and

impacts upon these species would be an early indicator of changes which could

eventually affect any and all species inhabiting a water body.

Rainbow Smelt

Rainbow smelt may be disappearing from some reaches of the Hudson because of

thermal discharges from electric generating stations. The rainbow smelt (Osmerus

mordax) is a small soft-bodied species which inhabits coastal areas of North America

from Labrador to as far south as Virginia. Smelt also occur naturally as landlocked

populations in some lakes in New England and eastern Canada. In 1912, smelt were

introduced into Crystal Lake in Michigan. From there they spread throughout the

Great Lakes where they are now found in abundance.150 Coastal populations support
151 Chase, B. and C. Childs, 2001. Rainbow Smelt (Osmerus mordax)

Spawning Habitat in the Weymouthfore River. Massachusetts Division of Marine

Fisheries Technical Report TR-5.

152 Buckley, 1989.

153 Chase & Childs, 2001.

154 Keser, M. 2001. Monitoring the Marine Environment of Long Island Sound

at Millstone Power Station, 2000 Annual Report. Environmental Laboratory, Millstone

Power Station, Dominion Nuclear, Waterford, CT.

155 ASA, 2002.

156 ASA, 2002, and prior (1996-99) Hudson River Year Class Reports.

Normandeau Associates, Inc. (NAI). Letter reports and field data from M. Ricci to J.

Kelly on the Striped bass and Atlantic tomcod Mark Recapture Program; April 26,

2002, and April 22, 2003.

Page 66 of 93

recreational fisheries and modest commercial fisheries in New England .151

Ecologically, smelt serve as forage for species such as striped bass and bluefish.152

Research conducted by the Massachusetts Division of Marine Resources has

documented relatively stable populations of smelt in several rivers located in

Massachusetts through 2000.153 Studies conducted by Dominion Nuclear

Connecticut, Inc. as a requirement of the operation of the Millstone Power Station

also demonstrate a stable population of smelt in the Niantic River and adjacent areas

of Long Island Sound through 2000.154 In contrast, data collected by the Hudson

River Estuary Monitoring Program, contained in the 1999 Year Class Report,

document the apparent local disappearance of rainbow smelt.155

Because the Hudson River is located in the southern portion of the rainbow smelt’s

east coast range, one might reasonably conclude that observed increases in ocean

and coastal water temperatures, as from global climate change, have caused a range

shift northward, with the smelt abandoning its southernmost range. However, smelt

populations at nearly the same latitudes as the Hudson River Estuary remain stable. 

This fact may indicate that localized influences have caused the apparent local

disappearance of this species in the Hudson River. Thermal discharges, as from

power plants, may be a principal factor in the disappearance of this species from the

Hudson estuary. Such a trend, if continued, could impact other species. This

circumstance warrants review of thermal contributions to the Hudson River Estuary. 

Atlantic Tomcod

Atlantic tomcod declines, too, may be attributable to the effects of cooling water

intakes at electric generating stations in the Hudson River. Like smelt, the Atlantic

tomcod (Microgadus tomcod) is a cold water species that has declined dramatically

since 1995.156 Tomcod populations in the Hudson River have been monitored since

1974 with a mark-recapture program using box traps. In 1982, trawling, primarily

south of the George Washington Bridge, was added as a means of collecting fish. 

The population of tomcod fluctuated but remained abundant through 1995, after
157 NAI, 2002-03.

158 Lawler, Matusky and Skelly Engineers (LMS),1999. Abundance and Stock

Characteristics of Atlantic Tomcod Spawning Population in the Hudson River, Winter

1995-1996. Prepared for NYPA, White Plains, NY.

159 Schreibman, M. and J. Young. 2002. Physiology Investigations of the

Atlantic Tomcod. Aquatic Research and Environmental Assessment Center and ASA

Analysis & Communications, Inc.

160 Wirgin, I. 2003. Contaminants: Use of Atlantic Tomcod as a Model to

Evaluate the Possible Toxic Effects of Pollutants on Hudson River Populations. At

Hudson River Environmental Society Presents: Hudson River Fishes & Their

Environment. March 20-21, 2003, Marist College, Poughkeepsie, NY. No published

proceedings. 

161 Simpson, D. 2003. Personal communication from Connecticut Department

of Environmental Protection to this Department regarding Connecticut information on

Atlantic tomcod abundance in tributaries to Long Island Sound. Included in

Appendix F- V.

Page 67 of 93

which a steady decline has occurred. During the 2001-2002 and 2002-2003

sampling seasons, tomcod have become virtually absent.157

The tomcod has a much shorter life span in the Hudson River than in more northern

systems, living only about 2 years. Three-year and older fish represent a tiny

fraction of the population (0.6 percent in 1995-96 season) and the majority of the

spawning stocks are 1-year-old fish.158 In contrast, stocks in other areas in New

England and Canada are much longer-lived and spawning stocks are dominated by

2-year-and-older fish. 

Numerous studies have been conducted investigating anthropogenic impacts upon

tomcod inhabiting the Hudson River Estuary and have revealed a very high incidence

of liver cancer.159 Recent research indicates a synergistic effect from elevated levels

of polycyclic aromatic hydrocarbons (PAHs), which appear to damage hepatic DNA,

leaving the fish more susceptible to PCB-induced early life-stage toxicities.160

In addition to chemical contaminants, other impacts upon the Atlantic tomcod

population which have been investigated include: reductions in food sources;

predation; and mortality due to cooling water intakes estimated at approximately 22

percent of each year class (1974-1997). The Hudson River is the southern extreme

of the range for tomcod. While stocks in Massachusetts waters appear to be stable,

preliminary observations suggest that the abundance of tomcod in Connecticut has

declined.161 As discussed above, these declines in populations at the southernmost

portion of the species range could indicate temperature-induced impacts from

climatic changes acting to shrink the species range. In the Hudson River this effect

could be exacerbated by the addition of thermal discharges from power plants.

Atlantic tomcod spawning begins in mid-February and extends into mid-March in the

Hudson River. The area of peak spawning is in the Highlands section of the river
162 Dew, B. C. 1991 Early Life History and Population Dynamics of Atlantic

Tomcod (Microgadus tomcod) in the Hudson River Estuary, New York. Doctoral

thesis submitted to the City University of New York, NYC, NY.

163 DEIS, Appendix VI

164 Dew, 1991.

165 Dew, 1991.

166 Wirgin, 2003.

167 Dew, 1991.

Page 68 of 95

near Con Hook approximately 5 river miles upriver from Indian Point.162 When eggs

and yolk sac larvae drift down river, in addition to being exposed to entrainment,

they are also exposed to a thermal plume from Indian Point Units 2 and 3 which

extends the entire width of the river on flood tide and across more than two thirds of

the width on ebb.163 In years of high freshwater floods, larvae are transported down

river by current into the Haverstraw region or the Tappan Zee region while maturing. 

Post yolk sack tomcod then concentrate near the leading edge of the salt front

(approximately 1 ppt salinity) and move with the tidal flow.164 In dry years with low

freshwater input, this front can be located in the Indian Point region. This results in

tomcod larvae congregating in the leading edge of the salt front, being repeatedly

moved past the Indian Point station discharge and intakes, potentially increasing the

thermal and entrainment effects of the plant on this species.165 Less than average

rainfall from 1995 into 2002 reduced the freshwater flow in the Hudson River. This

period corresponds to the period of rapid decline in numbers of Atlantic tomcod in

the Hudson River. 

Many factors are impacting tomcod populations: climatic trends leading to increased

water temperatures; decreases in available food resources caused by improvements

in waste water treatment and the invasion of zebra mussels; increased predation

from increased striped bass populations; and the physiological effects of chemical

pollutants.166 These multiple stressors can exacerbate the effects of heat discharged

from generating stations, particularly during low freshwater flow periods. Not only

could increases in river temperatures decrease the survival of larval tomcod, but

higher temperatures could also depress the growth rate of this species. Since the

fecundity of females is proportional to size, higher water temperatures could result

in fewer young produced. Should these factors, in combination with the mortality

induced by entrainment, significantly depress tomcod populations in the Hudson

River, further ecological repercussions could be expected to follow on populations

including striped bass, for which tomcod are a significant food source.167 Neither the

tomcod nor the striped bass population model proposed in the DEIS, however, has

any means to integrate these variables. 

Comb Jellies

Members of the phylum Ctenophora are commonly known as comb jellies and are

found in the Hudson River. In most years they become abundant in the lower

reaches of the River and New York Harbor from June to September when increases
168 USEPA, 2002.

169 Caraco, N. F., et al. 1997. Zebra Mussel Invasion in a Large, Turbid

River: Phytoplankton Response to Increase Grazing. Ecology 78(2), 1997, pp. 588-

602. Ecological Society of America.

170 Caraco et al., 1997.

171 Strayer, D. L., et al. 1999. Transformation of Freshwater Ecosystems by

Bivalves, A Case Study of Zebra Mussels in the Hudson River. BioScience, volume

49(1), pp. 19 - 27.

172 Strayer et. al., 1999.

Page 69 of 93

in salinity and temperature typically occur. Comb jellies are a voracious predator

feeding on invertebrates and larval fishes. In areas of high comb jelly density,

ichthyoplankton samples collected contain few larval fish. 

An analysis of data collected to assess the impacts of the Brayton Point station

located on Mount Hope Bay in Massachusetts determined that water temperature

increases resulted in an increase in the population of comb jellies, as well as the

extent of their range and the length of time they were present. The warming was

directly attributable to the cooling water discharge of the plant.168

Observations of the comb jelly population in the Hudson River over the past 10 years

indicate that a similar trend is occurring. While the warming climate may be

influencing the abundance and distribution of comb jellies, thermal discharges,

particularly in spawning and nursery areas of the Hudson River, should not be

discounted.

Zebra Mussels

Zebra mussels (Dreissena polymorpha), an invasive species of bivalve first observed

in the Hudson River in 1992, appear to have caused very significant reductions in

primary production (plant life, including phytoplankton) in the freshwater portion

upriver of River Mile 63. Between 1987 and 1991, before the invasion of zebra

mussels, summertime concentrations of chlorophyll averaged 30 mg/m3. During

1993 and 1994, concentrations dropped to 5 mg/m3.169 This ecological change is not

presented in the DEIS or reflected in the models offered in the DEIS.

Densities of both phytoplankton and small zooplankton (rotifers, tintinnids, and

copepods) dropped to 10 to 20 percent of their previous levels after zebra mussels

invaded the Hudson.170 This reduction directly affects planktivorous fishes and earlylife-stages of fishes which feed upon small zooplankton. The copepod population did

not change with the arrival of zebra mussels, however, Bosmina (a genus of water

flea) declined by 50 percent.171 The continued presence of copepods, a preferred

prey of young fish, may have insulated higher trophic levels in the Hudson from the

negative effects of the zebra mussel population.172 However, in contrast to Dr.

Strayer’s assumption, the 1999 Hudson River Year Class Report provides clear

evidence of several anadromous and resident species of fish in decline during the
173 ASA, 2002.

174 Strayer et. al., 1999.

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post-zebra mussel invasion period.173 One group of organisms which has increased

significantly since the appearance of zebra mussels is bacteria, but no information on

any pathogenic effects upon fishes in the Hudson has been found.174
175 Power Plants with SIC code 4911, in Appendix F-V. Indian Point,

Roseton, and Bowline are the first-, sixth, and seventh-largest users of water in the

State, with a combined intake flow of 7,177 CFS (cubic feet per second).

176 DEIS Chapter IV-B, Tables IV-6, IV-9, and IV-11. NOTE: ∆T (change in

temperature) should read EF not EC.

177 3 (volume each plant * ∆T each plant) / (3 volume of the 3 plants) =

mean ∆T

178 HydroQual, 1999.

179 Note that Unit 2 discharge canal is cold, so the plume shown resulted

from generation and discharge at Unit 3, only, at Indian Point, plus Lovett.

Page 71 of 93

Fish Population - 5. Thermal analyses need to be updated to

reflect recent, more extreme conditions. 

The Department concurs with this comment. Thermal discharges were inadequately

addressed in the DEIS. The DEIS asserts, with no supporting evidence, that “...

[t]he surface water orientation of the plume allows a zone of passage in the lower

portions of the water column, the preferred habitat of the indigenous species.” 

Other data and analyses cast doubt on this assertion.

The sheer volumes of water necessary to meet the HRSA plants’ cooling

requirements are enormous. Together, Indian Point, Roseton, and Bowline are

authorized to withdraw 1.69 trillion gallons per year for cooling water, and they

discharge 220 trillion BTU of waste heat per year.175 The volume of once-through

cooling water is raised between 15E and 18E F, depending on the plant,176 or an

average of 16.2EF.177 

Some graphics and imagery effectively illustrate the basis for the Department’s

concerns. A study by HydroQual, Inc., examined passive particle movement and

also investigated thermal and salinity profiles in several river reaches, including the

portion of the Hudson River where the HRSA plants are located.178 Figures 6 and 7

of this FEIS (following pages), excerpted from that study, show two vertical

temperature profiles of the Hudson River from NYC to just above the northernmost

of the HRSA plants, one during a spring and the other during a neap tide. Based

on these representations, it appears that there may be times and conditions where

effluent-warmed waters occupy nearly the entire vertical water column. 

The surface extent of thermal discharges from the HRSA plants is also a concern. 

Figure 8 is an aerial thermal image of the plume from Indian Point, Unit 3 only, on

the east side of the Hudson plus the smaller plume from Lovett on the west bank.179

In this image, the two plumes came very close to meeting on the surface, even with

Indian Point running at less than its full capacity. 

Because the HRSA facilities and two other steam electric generating stations are

essentially clustered in two relatively compact stretches of the Hudson River, there
Page 72 of 93

is a strong potential for thermal effects on the river and its aquatic resources to be

additive. Given the extent of warming shown in the HydroQual graphs, combined

with the recent dramatic declines in tomcod and rainbow smelt as discussed

previously, the Department believes it prudent to seek additional thermal discharge

data for each facility, including a mixing zone analysis, and anticipates requiring triaxial thermal studies as conditions to each of the SPDES renewals. Depending on

the results of those analyses, additional controls may be required to minimize

thermal discharges. 
180 HydroQual, 1999.

Page 73 of 93

Fig. 6. Temperature Profile of the Hudson River,

 NYC to Newburgh, During a Spring Tide180
181 HydroQual, 1999.

Page 74 of 93

Fig. 7 Temperature Profile of the Hudson River, 

NYC to Newburgh, During a Neap Tide181
Page 75 of 93

Fig.8. Thermal Plumes from Indian Point, Unit 3, 

and Lovett Station, Tompkins Cove, Hudson River, New York State.

(Original photo ©Spectra

Vista Corp, with permission)
Page 76 of 93

Fish Protection Points - 6. Fish protection points (FPP) would

provide operational flexibility but even less protection than

conditions in the Hudson River Settlement Agreement (HRSA).

The Fish Protection Point system proposed by the generators in the 1999 DEIS

would allow a great deal of operational flexibility for the three HRSA plants. While

some consideration of the need for generation capacity is warranted, particularly

during periods of high electricity demand, the proposed system would sacrifice

reductions in fish mortality in order to maximize freedom of plant operations. As

proposed, the DEIS’ preferred alternative would be less protective of aquatic

resources than measures under the HRSA and subsequent Consent Orders.

Tables 4-A, B and C (following) compare several alternative operating scenarios and

entrainment or impingement mitigation strategies for the HRSA plants. The tables

display predictions of conditional mortality rates for 6 fish species, the volume of

water used, and the volume of water lost to evaporation under a variety of

mitigation strategies at each of the 3 plants. The tables use italicized text to

indicate those values which would result from the implementation of the strategies

agreed upon in the 1981 Settlement Agreement; they serve as the basis for

comparison. Values which would reduce environmental impacts, by providing a

higher level of fish protection or by using less water, are indicated by bold text. 

Values which cause greater environmental harm, by providing lower levels of fish

protection or using more water, are indicated by both bold text and gray shading. 

It is instructive to note that, with respect to fish protection, only the proposed Fish

Protection Points strategy would result in lower levels of protection than would be

provided by the 1981 Settlement Agreement strategies. At Bowline Point, a single

species would suffer greater losses, but at both Roseton and Indian Point,

protection would be reduced for 3 of the 6 species.
182 See Footnote 134 of this FEIS.

Page 77 of 93

Table 4. Comparisons of Selected Mitigation Alternative Strategies

Key:

x.xx Same as 1981 Settlement Agreement

y.yy Better than 1981 Settlement Agreement

z.zz Worse than 1981 Settlement Agreement

CEMR Conditional Entrainment Mortality Rate182

MGD Million Gallons per Day

A. BOWLINE POINT

Striped

Bass

American

Shad

River

Herring

Bay

Anchovy

Atlantic

Tomcod

White

Perch

Water

Volume

Water

Evaporated

Alternative CEMR CEMR CEMR CEMR CEMR CEMR MGD MGD

1981 Settlement

conditions

0.80 0.05 0.19 3.93 6.39 1.01 910.00 5.18

Hybrid Towers 

(full year)

0.10 0.00 0.00 0.14 0.53 0.02 43.20 12.96

Hybrid Towers

(seasonal)

0.10 0.00 0.00 0.14 0.53 0.02 369.30 10.04

Fish Protection

Points

0.77 0.02 0.12 3.93 7.13 0.27 910.00 5.18

Gunderboom 

(full year)

0.18 0.01 0.04 0.86 1.39 0.22 910.00 5.18

Gunderboom

(seasonal)+ net

0.10 0.00 0.17 0.14 0.53 0.12 910.00 5.19

32-week Outage 0.00 0.00 0.00 0.00 0.00 0.00 349.80 1.99

Notes:

GG. Values for the CEMR for 1981 Settlement Conditions, Hybrid Towers

and the Fish Protection Points are from the 1999 DEIS.

HH. Values for seasonal use of the Hybrid Towers (seasonal) are based

on their use February 15 to September 15 (approximate dates) and

were computed by Department staff.

II. Values for Gunderboom assumed an 80 percent efficiency, with full

flow to the facility and were computed by Department staff.

JJ. Values for the 32-week outage are based on an outage from

February 15 to September 15 (approximate dates) and were

computed by Department staff.
Table 4 (cont). Comparisons of 

Selected Mitigation Alternative Strategies

Key:

x.xx Same as 1981 Settlement Agreement

y.yy Better than 1981 Settlement Agreement

z.zz Worse than 1981 Settlement Agreement

CEMR Conditional Entrainment Mortality Rate175

MGD Million Gallons per Day

B. ROSETON

Striped

Bass

America

n Shad

River

Herring

Bay

Anchovy

Atlantic

Tomcod

White

Perch

Water

Volume

Water

Evaporated

Alternative CEMR CEMR CEMR CEMR CEMR CEM

R

MGD MGD

1981

Settlement

conditions

2.40 0.78 3.28 0.51 1.67 4.92 923.00 5.18

Hybrid

Towers (full

year)

0.37 0.02 0.13 0.03 0.12 0.3

9

25.90 12.96

Hybrid

Towers

(seasonal)

0.37 0.02 0.13 0.03 0.12 0.3

9

370.0

0

10.04

Fish

Protection

Points

3.32 0.45 3.21 1.01 1.59 6.39 923.00 5.18

Gunderboom

(full year)

0.50 0.16 0.68 0.11 0.35 1.0

3

923.00 5.18

32-week

Outage

0.00 0.00 0.00 0.00 0.00 0.0

0

355.0

0

1.99

Notes:

AA. Values for the CEMR for 1981 Settlement Conditions, Hybrid

Towers and the Fish Protection Points are from the 1999 DEIS.

BB. Values for seasonal use of the Hybrid Towers (seasonal) are

based on their use February 15 to September 15 (approximate

dates) and were computed by Department staff.

CC. Values for Gunderboom assumed an 80 percent efficiency, with

full flow to the facility and were computed by Department staff.

DD. Values for the 32-week outage are based on an outage from

February 15 to September 15 (approximate dates) and were

computed by Department staff.

 Page 78 of 93
Page 79 of 93

Table 4(cont). Comparisons of 

Selected Mitigation Alternative Strategies

Key:

x.xx Same as 1981 Settlement Agreement

y.yy Better than 1981 Settlement Agreement

z.zz Worse than 1981 Settlement Agreement

CEMR Conditional Entrainment Mortality Rate175

MGD Million Gallons per Day

C. INDIAN POINT

Striped

Bass

American

Shad

River

Herring

Bay

Anchovy

Atlantic

Tomcod

White

Perch

Water

Volume

Water

Evaporated

Alternative CEMR CEMR CEMR CEMR CEMR CEMR MGD MGD

1981

Settlement

conditions 

7.82 0.64 1.20 10.38 12.04 4.94 2505.0 12.82

Hybrid Towers

(full year)

1.20 0.01 0.04 0.45 1.16 0.26 69.00 34.56

Hybrid Towers

(seasonal)

1.20 0.01 0.04 0.45 1.16 0.26 982.0

0

26.40

Fish Protection

Points

10.69 0.18 0.81 13.22 13.9

5

4.35 2419.

0

12.82

32-week Outage 0.00 0.00 0.00 0.00 0.00 0.00 964.0

0

4.94

Notes:

AA. Values for the CEMR for 1981 Settlement Conditions, Hybrid Towers

and the Fish Protection Points are from the 1999 DEIS.

BB. Values for seasonal use of the Hybrid Towers (seasonal) are based

on their use February 15 to September 15 (approximate dates) and

were computed by Department staff.

CC. Values for Gunderboom assumed an 80 percent efficiency, with full

flow to the facility and were computed by Department staff.

DD. Values for the 32-week outage are based on an outage from

February 15 to September 15 (approximate dates) and were

computed by Department staff.
183 CWA §303(d)(4)(B); 33 U.S.C. §1313(d)(4)(B); see also 40 CFR 131.12,

40 CFR 122.62, and 40 CFR 122.44.

Page 80 of 93

The proposed system would allow the trading of fish protection credits among the

HRSA plants and their operators. Such trading would alter fish protection

significantly in years in which one plant was off-line because credit for the inactive

facility could be applied to one or both of the other two. The nature of the aquatic

resource impacts would change because the different plant locations support

different species and different life stages of fish. For this reason, trading among

facilities and different operators could lead to unpredictable and probably less

effective mitigation. As of the writing of this FEIS in mid-2003, Roseton and

Bowline operate as peaking load facilities, as opposed to base load operation which

was the case when the DEIS was published in 1999. If trading of credits among

facilities and operators were to be incorporated into the permits of the HRSA

facilities, credits from Bowline and Roseton could allow Indian Point to operate with

little or no mitigation. This scenario would be contrary to the site-specific nature of

BTA determinations required by 6 NYCRR Part 704 and CWA §316(b). Carrying

credits accumulated in one year forward to subsequent years would not be a change

from HRSA requirements. However, as proposed in the DEIS, credits could be

carried forward and transferred to another facility. As discussed above, trading

credits between the three facilities would add a new dimension of uncertainty to fish

protection. Allowing credits accumulated at one facility in one year to be credited to

another facility in a subsequent calendar year would be likely to compound this

uncertainty. 

Fish protection credit would also be added for the difference between SPDES flows

(maximum pumping rate) and efficient flows at Indian Point, in contrast to the

HRSA where credits were earned by operating Indian Point at mitigative flows (less

than efficient). This change would lower the baseline from which credit for

mitigation is measured. While not necessarily a reduction in fish protection from

HRSA levels in and of itself, it would be coupled with a proposed level of protection

less than HRSA levels. The lower starting point would mask some of the resultant

reduction in fish protection. 

The proposed measures specific to Indian Point would provide a significant

reduction of fish protection by eliminating any requirement for outages (days off

line). The preferred alternative proposes to achieve fish protection at that site

solely through flow reductions without any outages. This would eliminate the

previous HRSA requirement for 42 unit-days off line each calendar year. 

The cumulative effect of the three changes described above would produce a

scenario much lest protective than current conditions. In addition, no new

measures to reduce fish mortality at Roseton and Bowline are proposed. These

relaxations in mitigation appear inconsistent with "anti-backsliding” prohibitions of

the Clean Water Act.183

The following excerpt from the review of the 1999 DEIS written by ESSA

Technologies Inc., for the Department, summarizes differences between the

generators’ preferred alternative and HRSA conditions. 
184 ESSA, 2000; Section 2.2. 

Page 81 of 93

“The proposed action put forward in the DEIS is a derivative of the

Settlement Agreement scheme with some very critical differences. The

proposed action:

1. translates the prior entrainment mitigation outage targets

based on units of days to targets based on the aggregate

Conditional Mortality Rate (CMR) due to entrainment for five

target species: striped bass, American shad, bay anchovy, river

herring and tomcod;

2. proposes that unlike the prior Credit Points, the new Fish

Protection Points (FPPs) may be carried forward across years as

well as traded between stations;

3. consistent with stipulated maximum flow requirements in

the 1981 and 1987 SPDES permits for Indian Point, the proposal

calculates and adds to the protection target the number of FPPs

equivalent to the difference between “SPDES flows” and efficient

flows for Indian Point Units 2 & 3;

4. proposes to continue the operation of current Modified

Ristroph screen technology at the Indian Point Station for

reduction of impingement mortality;

5. proposes to continue deployment of the barrier net at the

Bowline Station for reduction of impingement mortality;

6. proposes to continue the management and mitigation

regime for “thermal and chemical” discharge as carried out

under the prior 1981 and 1987 permits, and

7. proposes to meet the requirements for entrainment

mitigation exclusively through the management of station flows

without necessarily invoking requirements for unit outages as

previously required.”184
185 Athens Interim Decision.

186 Athens Interim Decision.

Page 82 of 93

Mitigation - 7. DEIS includes little information on barrier

systems and acoustic deterrents.

The Department concurs that additional information and updates to the data used in

the DEIS are necessary. Additional information on several technologies follows.

Wedge-Wire Screens

Recent designs in water withdrawal technology have included development of

wedge-wire screens to “filter” water prior to entrance into a system. Wedge-wire

screens usually are designed with small openings, for example 2 mm slot width, but

they can be designed with larger or smaller openings. Screening of water being

withdrawn from a source water body is standard practice to eliminate fouling and

clogging of pumps and cooling systems by detritus or large fishes, thus older power

generation facilities typically employed traveling screens with approximately 3/8

inch mesh openings. This design excludes sticks, macrophytes (large aquatic

plants) and large fishes from being entrained with the cooling water but does not

exclude smaller organisms or particles. Bowline Point, Roseton and Indian Point

facilities incorporate various types of large-mesh traveling screens, often with

improved collection mechanisms and fish/detritus return mechanisms, in their

intake designs.

The advantage of fine mesh wedge-wire screens is that the small openings prevent

small aquatic organisms from being entrained into the circulating water system. 

Two millimeter slot width has been employed in new facility designs and it is

expected that this opening will prevent ichthyoplankton larger than 15 mm from

being entrained. In general, fishes greater than 15 mm length are greater than 2

mm in width, and are thus not susceptible to entrainment. The velocity of the

water drawn into a system is directly associated with the size of the slot through

which it is drawn. The Department imposes a low through-slot velocity to ensure

that organisms are not impinged on the screen because they cannot swim away

from the intake velocity. EPA recommends a through-slot velocity of 0.5 fps or less,

but the Department has issued recent permits for intakes that generally have halve

that velocity.185 Additional protection is afforded by the current from tides or river

flow on a wedge-wire screen because it assists in moving organisms away from the

influence of the intake. 

New power generation facilities recently approved in New York are all combinedcycle designs with closed-cycle cooling.186 Combined-cycle facility produces two

thirds of its power with a gas turbine (which does not require cooling), only one

third of the facility requires cooling. This cooling requirement is further reduced by

approximately 95 percent by employing closed-cycle cooling. Thus, typical cooling

water requirements are 7 to 9 million gallons of water per day (MGD). This volume

can be accommodated with two T-shaped sets of cylindrical screens six feet in

diameter with 1 mm slot openings, with through-slot velocity of 0.2 feet per second. 
Page 83 of 93

In contrast, a single-cycle power generating facility using once-through cooling,

such as Roseton Generating Station, requires a maximum of 926 MGD for cooling at

full flow operation (less at efficient flow). For such a once-through cooling system,

even with larger screens at higher intake velocities, a great number of wedge-wire

screens would be required to supply the necessary cooling water; engineering

challenges, higher costs and loss of generating capacity would likely result.

Fish Barriers

Since the preparation and filing of the DEIS in 1999, a new technology for

eliminating aquatic organisms from a cooling water intake structure has emerged

and been permitted by the Department. The technology is known generally as an

“aquatic filter barrier” (AFB); the Gunderboom® Marine Life Exclusion SystemTM

(MLESTM) is the system which has been deployed, studied and permitted in NYS. 

Despite its name, use of the MLESTM is not restricted to marine systems. 

The MLESTM is a semi-permeable fabric barrier which surrounds an intake structure

and allows water to enter while excluding most very small particles, including

aquatic organisms. Additional components of the MLESTM include: the structures

necessary to maintain the barrier in place, such as anchors and floatation; a

cleaning device; monitoring equipment; and other miscellaneous equipment as

necessitated by the specific site conditions. Because the system is flexible, it may

be shaped to follow desired water depth or to increase surface area. The barrier

may be constructed in sections, allowing easier maintenance, installation and

retrieval. At present, only one company, Gunderboom, has a patent to construct

this type of barrier. Thus, an MLESTM is commonly referred to by the

“Gunderboom®” trade name.

Gunderboom® MLESTM, alone and in combination with other technologies, have

been determined to be BTA at a number of facilities on the Hudson River, and

requirements for installation have been written into the SPDES permits. Those with

MLESTM requirements include the new electric generation facilities at Bowline Unit 3

(700 MW combined cycle) and Bethlehem Energy Center (750MW combined cycle). 

The Empire State Newsprint Project, a 500 MW combined-cycle facility in

Rensselaer, New York, was issued a draft permit for an MLESTM in 2001. Lovett

Generating Station Units 3-5, an existing facility with a 450 MW generating

capacity, was issued a SPDES permit which included an MLESTM in February, 2003.

The Bowline Unit 3 MLESTM may generally be described as a straight line fabric

screen, 137 feet in length and 27 feet deep, that allows 7.5 MGD of intake flow

(maximum). ® Flow-through velocity is predicted to be approximately 0.004 fps

with a flow rate of approximately 1.4 gallons per minute per square foot. An airflow backwash system, strain gauges, water level monitors, and special bottom

sealing fabric are required as part of the system. Seasonal deployment of the

MLESTM, from February 15 through September 30, will allow protection during the

reproductive seasons of major Hudson River fish species.

The Bethlehem Energy Center facility will employ a different MLESTM design, yet still

use Gunderboom fabric material as the principal screening device. A 16' by 145'

rectangular H-pile and sheet pile structure will be constructed to support twelve
Page 84 of 93

removable filter panels orientated to the river flow. The structure is sized for a

maximum of 8.5 MGD flow with a fabric flow-through rate of 3.1 gallons per minute

per square foot. (0.007 fps). Seasonal deployment of the MLESTM from April

through August will be necessary for adequate protection to organisms. These filter

panels will be removed mechanically for maintenance and at the end of each

seasonal deployment; monitoring by the plant operator to ensure water passage, of 

strain on the panels, and related variables will be required.

The SPDES permit issued for the existing Lovett Generating Station requires the

permittee to provide information, analyses and plans necessary to install, operate

and maintain an MLESTM. It is anticipated that this structure will be a Gunderboom

curtain in the river that surrounds the intakes of Units 3,4 & 5. This means the

curtain will be subject to tidal influence and will have some movement with river

currents and wind. Close attention to operational parameters and maintenance will

be required. The permit includes a protocol for operation, maintenance, monitoring,

and responses.

The draft permit for the proposed Empire State Newsprint Project (ESNP) specifies

an MLESTM that is somewhat different from those already permitted. The intake will

be constructed a distance into the river along the bottom. The proposed

Gunderboom® barrier of the MLESTM will necessarily be offshore, too, surrounding

the wedge-wire intake screens in an oval shape 90' by 60' and be attached to 16

fender piles permanently installed in the river. This system is designed for a

maximum of 9.7 MGD, with a through-screen flow of 0.01 feet per second and a

flow rate of approximately 4.0 gallons per minute per square foot through the

Gunderboom® fabric. The MLESTM would be deployed and operational during the

primary fish spawning season in that section of the Hudson River, April 15 - June

30.

The Department is working with other facility owners toward investigating this

method of aquatic mitigation at other existing generation facilities within New York

State where an MLESTM could potentially reduce impingement and entrainment

mortality. 

Acoustic Deterrent System

A number of behavioral deterrent systems (e.g. fish hammers, hanging chains,

bubble curtains, strobe lights, mercury lights etc.) have been studied by utilities in

New York State for reducing impingement impacts at cooling water intakes. High

frequency sound is the only behavioral deterrent technology shown to be effective

and currently in use as an impingement mitigation technology in New York. The

technology is in use at the J. A. Fitzpatrick Nuclear Generating Station (NGS),

located on the south shore of Lake Ontario, and has effectively reduced the

impingement of alewife at the station. The fish deterrent system, known by the

trademark “Fish Startle System”, emits a high frequency, broadband sound (122 -

128 KHz) at a source level of 190 decibels. The system has three major

components: the integrated projector assemblies (IPAs), the power cable running

from shore to intake, and the control panel. The IPAs contain the signal generators

and transducers that emit the high frequency, broadband sound which has been

shown to be strongly avoided by members of the clupeid family. 
187 Ross et al, 1996; Radle et al, 2003.

188 Maes et al, 2003.

Page 85 of 93

In 1989, the New York Power Authority, which owns and operates the Fitzpatrick

NGS, started developing the mitigation system after learning that high frequency

sound evoked a strong avoidance effect in some species of herring. Laboratory

testing was successfully conducted on alewife, then a temporary sound system was

developed and tested in Lake Ontario in 1991. Preliminary results showed that the

number of fish in front of the intake was reduced by 81 to 87 percent when the

system was operated. Between April and July 1993, a second full scale test was

conducted. Paired impingement samples were collected with the system on and off

and compared against impingement samples collected at the nearby Nile Mile Point

Unit 1 NGS (control facility). The Nile Mile Point station is a similar sized NGS, with

a similar offshore intake structure. The 1993 study reported the overall

effectiveness of the system to be 84 percent (i.e., an 84 percent reduction in

impingement as compared to the control facility).187 

In 1995, the Department determined the acoustic deterrent system to be BTA for

minimizing adverse environmental impact at the Fitzpatrick NGS, and the system

was therefore incorporated as a condition of its SPDES permit. Because sound at

this frequency and decibel level has been shown to be effective for certain clupeid

species only (alewife, blueback herring and American shad), the technology by itself

has limited application. However, in combination with other mitigative

technologies, its application may be more widespread. 

British researchers have been testing an acoustic deterrent system on a number of

species at a nuclear generating station in Belgium since 1997. The effectiveness of

the system is stated to vary among species, due to species-specific hearing

sensitivities and the levels at which a species will react to a sound stimulus. 

System efficiencies (deflection of fish) from 21 percent for flatfish, to up to 98

percent for herring are reported.188 This work is promising if it proves to be

effective over a wide range of species. 
189 Grogan, 2000.

Page 86 of 93

Mitigation - 8. The DEIS significantly overstates costs and

energy impacts of closed cycle cooling.

A discussion of cooling tower design and operation was presented in Section VIII

and Appendix VIII of the DEIS. The Department requested ESSA Technologies,

Ltd., to review these analyses. This work was performed by D.B. Grogan Associates,

Inc. and is included in Appendix V to this FEIS.

The information presented in the DEIS regarding cooling tower design and cost

estimates is generally reasonable, based upon the assumptions used for this

analysis. In order to determine BTA for individual sites, these assumptions should

be modified or expanded to present further site-specific cooling tower alternatives

which will result in different construction and operational costs, as well as different

environmental impacts. Such additional analyses should include: tower designs

based on a variety of wet/dry bulb scenarios; wet towers; a variety of tower fill and

nozzle scenarios modified to increase operational efficiency; pre-treatment of

cooling tower makeup water; and historical operation information from large,

existing wet/dry (hybrid) systems.

The different closed-cycle cooling alternatives each result in different environmental

impacts, including land use, aesthetics, fogging, evaporative losses, drift impacts,

composition of the blowdown discharge, and thermal effects on the river. Energy

efficiency, too, varies among the cooling technologies. For example, wet/dry

cooling tower systems create a larger parasitic load when compared with wet

systems. This results in a need for replacement power from other facilities whose

air and water emissions may have an adverse environmental impact. 

Costs of both construction and operation of closed systems are a concern when

analyzing cooling system alternatives. The operational costs have been presented

in the DEIS, but D.B. Grogan Associates, Inc. points out that the cost of lost electric

generation may be significantly different in the present era of power deregulation

and may be seriously underestimated in the DEIS.189 Alternative designs that

minimize this loss would significantly change the cost projections.

A recent EPA update, published on March 19, 2003, concerning 40 CFR Part 125,

Proposed Regulations To Establish Requirements for CWIS at Phase II Existing

Facilities; Notice of Data Availability; Proposed Rule, provides additional information

on the cost of connecting a new facility to a closed-cycle system. It noted that the

period of time for interconnections to be made for installations at existing facilities

should be increased from EPA’s earlier estimate and could require up to seven

months at nuclear facilities. This could significantly increase the cost of closed-cycle

systems unless very detailed planning and construction schedules are carried out to

expeditiously complete this activity. Other revisions in EPA’s analysis, however,

show that compliance costs may actually be lower regarding energy penalties than

originally forecast. 
Page 87 of 93

Mitigation - 9. DEIS alternatives and proposed action do not

present a fair picture of available alternatives.

The Department concurs strongly with this comment. As discussed in the

“Mitigation and Alternatives” section earlier in this FEIS, based on the more specific

descriptions of newer technologies and recent advances in established technologies

discussed in preceding responses, and on discussions in the original DEIS, including

DEIS Sections VII and VIII and Appendix VIII, the Department contends that a

range of alternatives exist from which site-specific aquatic resource protection

programs can be developed which will meet the requirements for BTA. 

Furthermore, the Department maintains that some of the most promising

approaches for existing plants like these three Hudson River facilities will be in

combinations of technologies, or technologies combined with improvements to

management systems.
190 33 U.S.C. §1326(b); 6 NYCRR §704.5.

191 Athens Interim Decision

Page 88 of 93

Other Topics - 10. The DEIS needs to consider effects of New

York’s recent conversion to a competitive energy market, take

the State Energy Plan into account, or impose parity among

facilities.

The concept of parity, or leveling the playing field between two or more separate

holders of the same type of permit, is not a Department policy per se; nor is it

required in law or regulation. For each SPDES permit application that includes a

cooling water intake structure, the Department must determine whether the

location, design, construction, and capacity of the cooling water intake structure

reflects the “best technology available” (BTA) to minimize adverse environmental

impact.190 The Department makes each BTA decision on a case-by-case, sitespecific basis, without necessarily applying the technology(s) or methodology(s) to

minimize impacts between separate facilities in a rote manner that supports

comparisons.191

To make a BTA decision, the Department must assess the proposed action (issuance

or renewal of a SPDES permit) against the environmental impacts (direct, indirect

and cumulative) and determine whether the applicant’s proposed method of

addressing impacts outweighs alternative methods. This is necessarily a sitespecific endeavor that requires examination of technologies having the potential to

“fit” the facility and minimize adverse impacts to the extent warranted by the

environmental harm in the source water body. A particular mitigative technology

may not produce comparable reductions of impacts between two otherwise

comparable facilities. Furthermore, for any particular mitigative technology a

success differential is likely to exist between facilities with different types of

generation systems, CWIS, and/or cooling systems.

Mandating parity between existing facilities and new facilities subject to BTA

determinations would require that an agency be able to resolve inherent difficulties

and numerous issues, such as: (a) environmental impacts may not be the same, (b)

construction, operation, and maintenance costs may not be the same (even using

the same technology), (c) water bodies may be different, (d) public reaction to the

project and/or perception of the need for minimization of impacts may be different,

and (e) impacts to the State’s energy capacity may be different. Such a mandate

would also limit a decision maker’s flexibility to prescribe BTA remedies within the

boundaries of the statute, which does not require parity between facilities or BTA

decisions.

In cases where the issues listed above are not present, in other words, where there

is a strong basis for comparison between facilities, it is reasonable to expect that

similar technologies and associated costs would be involved in prescribing a BTA

remedy. However, this does not necessarily translate to “parity” because it is more

likely to occur between the same types of facilities (i.e., between existing facilities

or new facilities but not between an existing facility and a new facility). The
Page 89 of 93

distinguishing issues listed above as examples are more likely to create

discrepancies that interrupt attempts to level the playing field between or among

separate BTA determinations. 

Parity thus does not present itself as a clear component of mitigation remedies in

making a BTA determination. That does not prevent a decision making agency from

assessing whether the level of costs imposed on an existing facility can generally be

measured in terms of costs of mitigative technology installed by other (new or

existing) facilities. However, the apparent physical, engineering discrepancies

between an existing and a new facility and the potential biological differences

between source water bodies militate against direct comparisons of such facilities. 

In conclusion, parity is not defined in the context of making a BTA determination. 

Absent a policy or administrative or judicial decision which identifies an acceptable

equation for leveling out inherent discrepancies, the differences between existing

and new facilities (and, potentially, the source water bodies) present significant

obstacles to imposing parity to make newer, less polluting facilities cost competitive

with older facilities.
192 Atomic Energy Act of 1954, 42 U.S.C. 2021; see §2021(c)(1).

193 Entergy Nuclear Indian Point 2 and Entergy Nuclear Indian Point 3,

operators of the respective nuclear generation plants, have stated in the media that

they expect to begin the process of NRC license extension in 2006. Department staff

understand from an independent inquiry to NRC staff that the 2006 date projected to

start license extension is a reasonable one.

Page 90 of 93

Other Topics - 11. Radiation discharges are not discussed in

the DEIS, but should be.

Under the Atomic Energy Act of 1954 (AEA/1954), authority to regulate nuclear

discharges is reserved to the federal government.192 Discharges of cooling water

from Indian Point Units 2 and 3 are regulated by NYS as SPDES discharges to the

extent they contain effluent substances regulated pursuant to 6 NYCRR Part 703. 

Because Indian Point is a nuclear power generating facility, its construction,

operation, and maintenance are regulated by the federal Nuclear Regulatory

Commission(NRC), pursuant to the AEA/1954. 

In 1962, the Atomic Energy Commission (AEC), the NRC’s predecessor agency, and

then-Governor Nelson A. Rockefeller, executed an “Agreement . . . for

Discontinuance of Certain Commission Regulatory Authority” (Agreement). 

Pursuant to that Agreement the AEC discontinued its regulatory authority over

certain radioactive materials (“byproduct materials, source materials, and special

nuclear materials in quantities not sufficient to form a critical mass”) so that NYS

could apply its own licensing program to those substances. However, the AEC

retained its licensing authority with respect to, among other things, the construction

and operation of any production or utilization facility, including nuclear power

generation facilities. Consequently, radioactive releases or discharges from nuclear

power generation facilities are regulated, today, by the NRC, not NYS.

Under the authority of the AEA/1954 and 10 CFR Part 50, the NRC issues licenses

and license extensions to nuclear power generating facilities and regulates any

releases of radioactive material from licensed facilities. The current NRC licenses

for Indian Point Unit 2 and Indian Point Unit 3 expire in 2013 and 2015,

respectively.193 The New York State SPDES permit for Indian Point Units 2 and 3

will control effluent discharges as to all substances controlled by the regulations set

forth in 6 NYCRR Part 703 that are not otherwise controlled by the federal NRC

authority in 10 CFR Part 50. Thus, the Department does not have the authority to

require a SPDES permit renewal application to identify discharges that do not fall

within its SPDES jurisdiction.

The 1962 Agreement fostered the creation of a licensing program at the state level

for limited purposes where NYS had demonstrated to the AEC that sufficient

technical expertise had been developed with regard to a short list of regulated

substances. It bears repeating that in 1962, NYS did not undertake to acquire the

AEC’s authority to license nuclear power generation facilities or any radiation

releases or discharges that could be associated with them, nor does NYS presently

have or seek to develop the expertise necessary to administer such a licensing

program.
194 33 U.S.C. §1341

Page 91 of 93

As noted above, New York State’s SPDES permit renewal process is entirely

separate from the federal NRC license extension process. However, the Department

does have a role in the NRC license extension process. Because these facilities

discharge cooling water into navigable waters of the United States, the

Department’s role in the NRC license extension proceeding will be to process and

issue or deny the licensee’s application for a state water quality certificate, pursuant

to §401 of the Clean Water Act194. Obtaining a state water quality certificate is a

prerequisite to extending an NRC license. For the NRC to make a decision to grant

or deny license extension, Entergy Nuclear Indian Point 2 and Entergy Nuclear

Indian Point 3 will need to deliver a NYS water quality certificate to the NRC

applicable to both Units 2 and 3. In considering whether to issue or deny a water

quality certificate for Indian Pont Units 2 and 3, the Department will apply the water

quality standards set forth in 6 NYCRR Part 700, et seq.

In light of the foregoing, concerns for possible radioactive releases in the cooling

water discharged from Indian Point, or concerns for possible health effects from

radioactive emissions, should be addressed directly to the NRC, not the

Department, either as a license compliance matter or in the course of license

extension proceedings. Such concerns cannot be addressed in conditions to a

SPDES permit. 
Page 92 of 93

Other Topics - 12. Several commentors expressed generalized

opposition to renewal for one or more facilities.

These comments, while clearly deeply felt, did not raise substantive issues which

can be addressed in the context of the issues and information included in this FEIS. 

Accordingly, no response or analysis is offered.
Page 93 of 93

List of Appendices

Please note that appendices are not available on the website. However,

you may request one or more of the appendices by contacting Betty Ann

Hughes at bahughes@gw.dec.state.ny.us.

F-I. Notices and Comments on 1999 DEIS

• DEIS Notices 

• Full texts of written public comments

• Public hearing transcripts 

• Department comments (on CD; hard copy available on request)

F-II. Text of HRSA

F-III. Fourth Amended Consent Order

F-IV. ESSA reports

• On CD; hard copy available on request.

F-V. Other cited references and letters not readily available:

• 1991 letters by former Commissioner Jorling to HRSA utility executives

• Article by John Boreman 

• Normandeau Associates, Inc. letter/reports

• Simpson letter

• List of Industrial Code 4911 Facilities in NYS

• On CD; hard copy available on request: 

- ASA 2002 (1999 year class report)

- City of Poughkeepsie Hudson River Temperature Data (spreadsheet)