Energy Production and Reservoir and River Water Quality: Regulatory Framework

Abstract

The regulatory framework affecting power generation is complex and in a state of flux. There are a variety of agencies and regulations affecting the permitting or licensing and operation of energy production facilities. While not intended to be exhaustive, the purpose of this forum is to review some of these major issues within the context of energy production and reservoir water quality. In the design of studies related to this topic it is necessary to first identify the studies’ goals and objectives. Often those goals are driven to some extent to address management decisions related to regulatory issues. Like all water resources development projects, there are a variety of federal and state laws, regulations, executive orders, and case law impacting energy production facilities. Some of the more relevant federal provisions follow. By some count, for example, there are over 25 federal statutes that impact some part of the hydropower licensing process ~FERC 2000b!, many of which are related to natural resource issues. Individual states’ laws and compacts between states also impact the licensing and permitting process and the operation of power generation facilities. The legal environment governing the planning, construction, operation, maintenance, and relicensing of these types of facilities have evolved over time and continue to evolve. States may vary in the manner in which laws and regulations are implemented. For example, states take various approaches to administer and enforce their own equivalent of the federal Clean Water Act ~CWA!, such as in the listing of impaired waterbodies @under Sections 305~b! and 303~d!#, and the implementation of water quality certifications or waivers ~under Section 401!. In addition, the CWA includes Sections 316~a! and 316~b! that influences the joint operations of steam electric power plants and hydroelectric projects as they affect water temperatures and intake entrainment. The interpretation of these laws by the federal court system, and in some cases their requirements for the enforcement of existing laws ~such as provisions of the CWA! is also impacting the present regulatory environment. Thus, the regulatory issues impacting the licensing or permitting and operation of power generation