Responding to the Regional Water Quality Control Board's permit for Duke Energy's proposed expansion of its Moss Landing Power Plant in Monterey County, the conservation group Voices of the Wetlands today filed suit in state court to compel compliance with the federal Clean Water Act. The lawsuit asks the court to vacate the permit because it fails to require use of the "best technology available" for the plant's cooling water intake system, as mandated by Section 316(b) of the Clean Water Act.
At stake is the future health of Elkhorn Slough, one of California's last remaining coastal estuaries and an essential biological nursery for the adjacent Monterey Bay National Marine Sanctuary. Home to hundreds of species of resident and migratory birds, fish, marine mammals and invertebrates, Elkhorn Slough is considered a "biological gem" of global significance. It has been designated an ecological preserve by the State of California and a National Estuarine Research Reserve by the federal government. Several federally listed endangered and threatened species inhabit the Slough, and the U.S. Fish and Wildlife Service has designated the Slough as "critical habitat" for the threatened Western snowy plover.
The Moss Landing Power Plant, which sits at the intersection of Elkhorn Slough, Moss Landing Harbor and the Monterey Bay sanctuary, was constructed in 1950 by PG&E and expanded in 1968. The plant was designed with a once-through cooling technology that utilizes enormous quantities of water from the harbor and slough. Virtually all of the marine life sucked into the cooling system is killed and the discharge of heated water at the other end of the system can harm species near the outfall pipes. Since PG&E retired several operating units in 1995, wildlife conditions in the wetlands have improved significantly and the Slough's sea otter population has increased at six times the statewide rate.
Duke Energy purchased the plant in 1998 and is now proposing to add two new operating units that will nearly double the facility's generating capacity. The expansion will increase cooling water intake to 1.224 million gallons per day, which means that roughly 28 percent of all of the water in the slough and harbor will flow through the plant on a daily, annual and life-of-the-facility time basis. The California Energy Commission and the Central Coast Regional Water Board determined that the expanded cooling water system will have "significant" adverse biological impacts on the Elkhorn Slough ecosystem and that these impacts could be essentially eliminated through use of newer, proven cooling technology such as closed-cycle wet recirculation or dry cooling. Amortized over the life of the plant, the cost of these cooling alternatives would be pennies a month per ratepayer. Yet the Regional Board inexplicably failed to require their installation at the expanded facility.
"The Clean Water Act requires use of the 'best technology available' or BTA, period. There are no exceptions in the law," said Deborah Sivas, an Earthjustice attorney who is representing Voices of the Wetlands in the case. "Duke is proposing to construct brand new units, which will operate for decades into the future, using a cooling water technology that is now half a century out of date. There simply is no question that much more ecologically sensitive cooling technology exists today, and federal law mandates that it be used."
"Throughout the permitting process, we asked the Regional Board to evaluate BTA in connection with the proposed expansion," added Patricia Matejcek, spokesperson for Voices of the Wetlands. "But our pleas fell on deaf ears. Instead, Duke convinced the Board to ignore BTA and substitute a so-called 'mitigation fund' in its place. Their theory is that the fund will be used to offset the anticipated biological devastation by increasing productivity elsewhere. But there is no evidence that such enhancement efforts will work or that the amount to be paid into the fund is sufficient to do the job. Our contention is that the Regional Board should prevent the damage from happening in the first place."
"The law does not allow for the backwards process followed by the Board," agreed Sivas. "First and foremost, the plant must implement BTA. If, and only if, the application of BTA is insufficient to minimize adverse impacts should the Board look to restoration funding for additional ecological protection. Here, the Regional Board simply skipped the BTA step altogether."
Voices of the Wetlands is not trying to stop expansion of the plant. Rather, the suit seeks a court order compelling the Regional Board to comply with its legal obligations under the Clean Water Act through application of the same modern cooling system technology that other new plants throughout California and the rest of the nation have proposed.
"Every bit of zooplankton, every diatom, every fish larvae, every living thing that goes into that plant will be killed," said Jack Ellwanger of Voices of the Wetlands. "We are talking about over a quarter of all the water in the slough and harbor going through the plant every single day, high tide or low, spawning season and migratory season, for at least the next 40. It seems like common sense to require a cooling water system that can avoid all of this death and destruction, especially when many other plants are already using or proposing such systems."
Voices of the Wetlands is represented in the suit by Deborah Sivas, Director of the Earthjustice Environmental Law Clinic at Stanford. More information about the Moss Landing project and the lawsuit can be obtained from the URL: http://www.pelicannetwork.net/vow.htm