In Move to Protect Endangered Fish, ‘Green’ Groups May Sue State DEP

Tom Johnson | June 17, 2015 | Energy & Environment
Coalition targets coal-fired power plant in Mercer County, saying its kills off huge numbers of shortnose and Atlantic sturgeon each year

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The state faces a lawsuit from environmental groups over its alleged failure to protect endangered sturgeon threatened by operations at a coal-fired power plant in Mercer County along the Delaware River.

In a notice of intent sent to the New Jersey Department of Environmental Protection yesterday, the Sierra Club and other conservation organizations plan to initiate litigation within 60 days unless the state commits to complete overdue permitting at the facility, owned by PSEG Power. The Newark-based company also must institute other protections for the sturgeon.

The dispute is part of a long-running argument between environmentalists and the DEP to install costly cooling towers at the power plant in Hamilton Township and other locations. These towers help reduce the massive kills that occur when fish are sucked into the units along with the water used to keep them from overheating.

In this instance, environmentalists claim the plant’s operation harms shortnose sturgeon and Atlantic sturgeon, two federally listed endangered fish species, by withdrawing hundreds of millions of gallons of water from the Delaware River each day to produce steam.

“In my 40 years as a fish-research biologist, I have never seen a case so clear: the water withdrawal from the Delaware River for the cooling system at the Mercer coal-fired power plant likely entrains and kills thousands of young shortnose and Atlantic sturgeons every year,’’ said Dr. Boyd Kynard, a sturgeon biologist who has served on national sturgeon recovery and protocol development teams for nearly three decades.

The DEP does not comment on litigation, but Larry Hajna, a spokesman for the agency, said the Mercer facility has been operating on a reduced schedule compared with other years, lessening its impact due to decreased intake flow.

As for the permit, which expired in 2011, Hajna said the DEP is evaluating new rules adopted by the U.S. Environmental Protection Agency regarding power plants and will apply them when the permit is renewed.

In a statement, PSEG said it has spent millions of dollars to reduce potential impacts on aquatic life at the Mercer generating station. The company also said it submitted its renewal application for the water permit on time and is operating in full compliance with its current permit.

Environmentalists had another view.

“We are going to court to try and force DEP to do the job it’s supposed to do, which is to protect the Delaware River, its fisheries, and ecosystem,’’ said Jeff Tittel, director of the New Jersey Sierra Club. “For far too long, the DEP has allowed the Mercer generating station to pollute the river and kill more than 70 million fish and fish larvae per year.’’

Doug O’Malley, director of Environment New Jersey, said the lawsuit is finally taking DEP to task for letting PSEG off the hook for years of using antiquated technology. “If PSEG is unwilling to install modern cooling towers to stop this ecological damage, they should shut down this fossil fuel dinosaur,’’ he said.

Besides the Sierra Club, other groups involved in the notice of intent are Earthjustice and Super Law.

“When government fails to protect an endangered species, the people have a right to go to court,’’ said Charles McPhedran, an attorney with Earthjustice. “Today’s action sets up a federal lawsuit to protect sturgeon in the Delaware River.’’