Historic proposed state policy against use of sea water

April 20, 2010

By JACK McCURDY

A landmark new state policy that for the first time would restrict and phase out use of estuary, delta and ocean water for cooling coastal power plants has drawn the adamant opposition of the Coastal Alliance on Plant Expansion of Morro Bay, the City of Morro Bay, 29 other state and local environmental and commercial fishing organizations and nine state legislators because of large loopholes that could allow the practice to continue indefinitely, killing an estimated 79 billion fish and other marine life annually. Another 8,928 letters from individuals were submitted opposing the policy.

The major fear of the Coastal Alliance on Plant Expansion (CAPE) is that protracted withdrawal of water by the 55-year-old Morro Bay Power Plant from the Morro Bay National Estuary–water containing billions of various forms of sea life that are killed–could cause the Estuary to collapse, threatening tourism, property values and the viability of the business community. It has happened to an estuary on the East coast, resulting in its waters becoming a “dead zone” marked by few if any marine life in it.

The Morro Bay National Estuary, which is the only estuary in California designated an Environmentally Sensitive Habitat Area that is being used as a source for power plant cooling water, “is already impaired and in ecological decline…,” the California Energy Commission staff declared about eight years ago.

Depending on how the policy’s lax and vague language is interpreted, the Morro Bay plant could already be in compliance with requirements to reduce water use without the plant owner having to lift a finger.

Continued use of sea water for cooling by existing power plants in California, which has been going on for up to 60 years, would violate the U.S. Clean Water Act, as interpreted in an historic 2007 federal appellate decision that is now federal law. The only remaining question is how long power plants should be allowed to phase it out. Even if its phase-out requirements were enforced, the policy allows some plants up to 14 years to end what is called once-through cooling, or OTC.

The opposition comments generally urged a complete overhaul of the proposed policy. They were submitted on Tuesday, April 13, to the State Water Resources Control Board, which is scheduled on May 4 in Sacramento to consider adoption of a policy that has been nearly five years in the making. The draft policy, which would regulate power plants’ use of the water, has been severely weakened after strong lobbying by power plant owners since being initially proposed.

The policy’s procedural, statutory and legal faults cited in comments filed by the organizations, who compose a coalition coordinated by the California Coastkeeper Alliance, could deter the board from enacting the policy as now drafted, especially since possible litigation is mentioned in those comments.

CAPE, a nonprofit citizens group that has been monitoring efforts to build a new and larger Morro Bay Power Plant for 10 years, said in its separate comments that the policy fails to comply with the new federal law prohibiting use of estuary, bay or ocean water for power plant cooling. The policy “is structurally flawed due to incomplete, unclear and confusing language and requirements, defects which would render the policy inoperable and unenforceable,” CAPE said.

CAPE also pointed out that the proposed policy is contradictory in setting 2015 as the deadline for the existing Morro Bay Power Plant to stop using OTC, while listing 2011 as the year after which the plant “is not required” to help meet state energy needs. The plant owner, Dynegy, announced last fall that it would plan to stop using OTC in 2015, considering that was and still is the deadline in the draft policy. But a spokesman now says the corporation is reviewing its options. The plant, as now designed, is unable to operate without OTC.

The city of Morro Bay’s comments said it “continues to have grave concerns” about the draft policy because it “is vague and unclear, allowing opportunities for power plant owners to exercise options to avoid achieving the Board’s stated goal of ‘protecting the state’s coastal and estuarine waters.'” Therefore, the policy “will not comply with the Clean Water Act.”

The policy calls for the Diablo Canyon Power Plant to terminate use of OTC in 2024, the most distant deadline of all the 19 coastal plants, but the coalition commented that “the policy allows unspecified and essentially unlimited loopholes for the nuclear facilities,” which include Diablo and the San Onofre Nuclear Plant in San Diego County. “In this respect, it appears that this policy may be giving nuclear facilities even more than the U.S. EPA (Environmental Protection Agency) under President George W. Bush was willing to give,” the comments added.

The other main points in the coalition’s comments:

–The Clean Water Act requires “best technology available” (BTA) to cool power plants, which does not allow use of natural water from lakes, rivers or the ocean, but the proposed policy does not require such technology, instead making it “optional.”

–The proposed policy allows power plants to comply with the policy by virtue of past measures to reduce OTC, even though those measures do not meet BTA requirements.

-The water board illegally relinquishes its assigned authority to regulate OTC by delegating virtually all power to determine compliance deadlines to other state agencies, namely the California Independent System Operator, the California Energy Commission and the California Public Utilities Commission on matters involving reliability of the state grid, which means provision of adequate energy to the public.

–The policy allows mitigation of environmental impacts from OTC through habitat restoration in lieu of BTA, which is not permisable now under federal law.

–The policy significantly dilutes monitoring requirements that are essential to determine whether progress towards BTA and ecosystem health is being made by power plants.

-The policy fails to comply with new state climate change requirements being administered by the California Air Resources Board by allowing the old, polluting power plants to operate longer than necessary. In addition, the policy’s assessment state needs for energy–focused on allowing existing plants to operate long than necessary–fails to consider the rising availability and state funding support of alternative sources, such as solar power, which was recognized last year as a feasible alternative to conventional power plants by the state Energy Commission.

–The board has failed to respond to comments submitted by organizations in the past, which is required by state law.

Jack McCurdy is co-founder of the Coastal Alliance on Plant Expansion and was a reporter for the Los Angeles Times for 20 years.