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The Clean Water Act, Climate Change, and Energy Production: A Call for Principled Flexibility Regarding 'Existing Uses'

4:2 George Washington Journal of Energy & Environmental Law 27 (Summer 2013)

University of Utah College of Law Research Paper No. 53

21 Pages Posted: 9 Apr 2012 Last revised: 25 Jan 2014

Robin Kundis Craig

University of Utah S.J. Quinney College of Law

Date Written: October 24, 2013

Abstract

Numerous provisions of the Clean Water Act affect electricity generation, from potential siting restrictions that arise as a result of Section 404’s restrictions on discharges of dredged or fill material to effluent limitations that require power plants to cool their spent cooling water before returning it to streams, rivers, and lakes. This article focuses on two aspects of the Clean Water Act that directly raise — and, in a climate change era — will increasingly force — confrontations between electricity production, on the one hand, and water quality and aquatic ecosystem protections, on the other: (1) water quality standards, including both the Act’s antidegradation policy and states’ implementation of their standards through Section 401’s requirement that states certify federally-controlled discharges within their borders; and (2) Section 316’s requirement for cooling water intake protections, which — together with thermal discharge requirements to comply with water quality standards — is becoming increasingly important for thermoelectric plants.

After reviewing the history and import of the Clean Water Act for electricity production, this article discusses how climate change impacts on both water quality and electricity demand and production are likely to sharpen the perceived conflicts between the Act’s water quality requirements and goals and future energy policy. Applying the paradigm of principled flexibility, this article concludes that a key component of future energy and water quality policy should be the recognition that stationarity is dead on both sides of the equation — that is, while energy demands and production capability will be changing in response to climate change, so will aquatic ecosystems and the relevance of existing water quality standards. As a result, different kinds of decisions may be warranted for electricity production in and near aquatic ecosystems that climate change is fairly clearly destroying than for electricity production in and near aquatic ecosystems where strict enforcement of the Clean Water Act’s “existing use” requirements is likely to enhance the ecosystem’s ability to adapt to — and survive — climate change.

Keywords: Clean Water Act, energy, electricity, water quality standards, Section 316(b), thermal discharges, hydroelectric, Section 401, climate change, principled flexibility, antidegradation

Suggested Citation

Craig, Robin Kundis, The Clean Water Act, Climate Change, and Energy Production: A Call for Principled Flexibility Regarding 'Existing Uses' (October 24, 2013). 4:2 George Washington Journal of Energy & Environmental Law 27 (Summer 2013); University of Utah College of Law Research Paper No. 53. Available at SSRN: https://ssrn.com/abstract=2036489

Robin Kundis Craig (Contact Author)

University of Utah S.J. Quinney College of Law ( email )

383 South University St.
Salt Lake City, UT 84112-0730
United States
801-585-5228 (Phone)

HOME PAGE: http://https://faculty.utah.edu/u0793211-ROBIN_KUNDIS_CRAIG/biography/index.hml

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