The Sierra Club and the Hudson River Fisherman’s Association (HRFA) filed suit last week challenging a water withdrawal permit issued by the NYS Department of Environmental Conservation (DEC) to Con Ed’s East River electric generating station to take over 373 million gallons of water per day from the East River in the Hudson River estuary for its antiquated once-through cooling system. These enormous withdrawals do tremendous damage to aquatic life in the estuary and the entire Hudson River watershed.
The Article 78 petition filed in New York County Supreme Court on March 23, 2015, Sierra Club v. Martens, Index No. 100524-2015, is the second suit the groups have filed challenging a permit issued by the DEC to take water from the East River. In 2013, Sierra Club and HRFA filed suit in Queens County Supreme Court challenging the issuance of a permit to the Ravenswood Generating Station to take over 1.5 billion gallons per day from the East River for its once-through cooling system. The DEC has also issued permits to take water from the East River to U.S. Power’s Astoria generating station in Queens for over 1.4 billion gallons per day and to the Brooklyn Navy Yard facility in Brooklyn for 72 million gallons per day. The combined withdrawals DEC has permitted from the East River for these four power plants is almost 3.5 billion gallons per day.
The permit issued to the Ravenswood facility was the first permit issued under New York’s new water withdrawal permitting law and regulations. All four East River permits are among the first 25 permits issued by the DEC under the new permitting program. Ultimately, over 1,000 permits will be issued to non-public water users under the new law. The new law requires that persons withdrawing 100,000 gallons or more per day from the waters of New York obtain a water withdrawal permit. Previously, permits were required only for public water supply systems.
Both lawsuits claim that an environmental impact review should have been conducted by the DEC pursuant to SEQRA and the Waterfront Revitalization and Coastal Resources Act prior to issuance of a permit. The suits also claim that the conditions in the permit fail to meet the water conservation requirements of the new law, and that DEC’s failure to impose permit conditions to protect aquatic life in the East River violates the department’s public trust obligations. On October 1, 2014, Justice Robert McDonald denied the Sierra Club and HRFA petition. They are appealing that decision.
On April 1, just after the suit challenging the Con Ed permit was filed, the DEC released its Draft Hudson River Estuary Action Agenda 2015-2020 calling for measures at the four East River power plants to reduce fish kills. Target 4 of the draft agenda calls for the reduction of fish kills at the “four remaining steam electric power plants that use once-through cooling systems” in the estuary. In spite of this goal, DEC pushed these plants to the head of the line for water withdrawal permits without requiring any new measures to protect marine biodiversity.
“Although the East River is in an estuary, and water from it is not potable, the River is a major fish migration route and the enormous withdrawals by these generating stations for their once-through cooling systems do tremendous damage to aquatic life in the estuary and the entire Hudson River watershed. DEC is allowing these huge withdrawals despite the special protections granted to the estuary by the state legislature,” Gil Hawkins, president of the Hudson River Fishermen’s Association observed.
In 2011, the Sierra Club released a report, Giant Fish Blenders: How Power Plants Kill Fish & Damage Our Waterways (And What Can Be Done to Stop Them), as part of a campaign to end the devastating impacts large water withdrawals can have upon aquatic ecosystems. The report points out that the Hudson River is one of the most biodiverse temperate estuaries on the planet, and that fish kills from the power plants in Hudson River estuary damage the entire spectrum of wildlife in the river’s aquatic ecosystems at all life stages.
“The damage to the harbor estuary caused by the vast power plant fish kills must be minimized before permits to withdraw from the East River are issued,” Hawkins said. “Surely the water conservation requirements of the new law mandate closed-cycle cooling systems at these power plants. Our association has worked for many years to protect the Hudson River watershed, of which the East River is an integral part, from pollution and fish kills. New York’s new water withdrawal permitting requirements must be implemented responsibly or great harm may be done to the entire Hudson River system.”
“The DEC needs to establish adequate water conservation requirements and conduct an environmental review for each water withdrawal permit application in order to fulfill the objectives of the new 2011 permitting law, which are to promote water conservation, ecological health and equity among all users,”said Roger Downs, conservation program manager of the Atlantic Chapter of the Sierra Club. “The DEC’s failure to do so sets a terrible precedent for the handling of subsequent withdrawal permit applications.”
“For the DEC to pass on water withdrawal permits to existing water users with no scrutiny of their impacts on other users and the environment may have devastating consequences as we enter an era of increasing water supply uncertainty,” said Irene Van Slyke of Brooklyn, the lead volunteer on the suits. “The impacts of the withdrawals must be considered and mitigation measures required before permits are granted.”
Petitioners are represented by attorneys Richard J. Lippes and Rachel Treichler.