Reposted from Environmental Law Prof Blog.
A standard environmental history of American dams unfolds something like this: As a nation, we had a long 
love affair with dams. And while they helped our nation grow into an industrial power, the environmental side-effects were immense: lost forests and farmland, drowned canyons, and, perhaps most importantly, devastated fisheries. Yet even after some of those consequences became apparent, the story goes, dam-building marched on, powered by bureaucratic inertia and the seemingly unstoppable engine of pork-barrel politics. Finally, in the 1980s, we stopped, but by then we had built approximately one dam for every day of our national existence. As former Secretary of the Interior Bruce Babbitt once put it, “we overdosed.” We’re now starting to take dams out, and those dam removals often lead to dramatic environmental improvements. But, in the standard narrative, the removals aren’t coming nearly fast enough.
I agree with this story, and most of the underlying facts aren’t really in dispute. But another narrative of dams lingers on, particularly — but not exclusively — in the reports of the government agencies that manage much of our hydropower. In this story, hydropower remains an essential part of our energy mix. Hydropower still comprises approximately 7 percent of our national energy-generating capacity (globally, the percentage is higher). While that number may seem small, it dwarfs the contributions of wind, solar, geothermal, and other renewables. For a few key reasons, that 7 percent is also particularly useful. First, the greenhouse gas emissions of existing hydropower are minimal, at least in the United States. Second, both solar and wind power are somewhat intermittent in their availability, and studies finding that we can rely much more heavily on renewable energy (like this one here, which Lesley McAllister recently blogged about) generally assume that hydropower will even out some of the dips in the supply curve.
Hydropower’s share also could grow. Some recent studies have identified huge amounts of untapped hydropower capacity, much of it at sites where we already have dams (the United States has approximately 80,000 non-hydropower dams). How much of that capacity is economically available, given a reasonable set of environmental constraints, is a hotly debated question. But at least some capacity for expansion exists, and renewable portfolio standards or—dare we hope—a price on carbon could make expanded hydro look much more economically appealing. In this alternative narrative, then, hydro occupies a crucial and potentially dynamic role in our energy future. And this narrative is not just idle storytelling. In multiple bills, including, most recently, the Water Resources Development Act recently passed by the Senate, Congress has signaled its continuing enthusiasm for hydropower.
Full textTwo months ago, a federal district court in Alaska set aside the Department of the Interior’s designation of critical habitat for the polar bear. This had been the most geographically extensive critical habitat designation ever under the Endangered Species Act (ESA), but it provoked adamant opposition from the petroleum industry and the state of Alaska. That isn’t atypical; critical habitat designations often generate controversy. But one might wonder why.
The ESA’s only provision directly targeted at critical habitat protection is the so-called adverse modification prohibition. Specifically, section 7 of the ESA prohibits federal agencies from taking any action “likely to… result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical.” In environmental law casebooks, academic literature, and, sometimes, in practice, that prohibition can seem like the forgotten step-child of the ESA. Almost all the attention instead goes to section 7’s prohibition on federal actions likely to “jeopardize” listed species and to section 9’s take prohibition. On paper, the adverse modification prohibition looks powerful, but discussion of it is rare enough that one might ask why anyone cares about critical habitat at all.
Several years ago, I started a research project that tried to make sense of this conundrum. My goal was to figure out the extent to which the Fish and Wildlife Service and the National Marine Fisheries Service are actually using the adverse modification prohibition to protect species. I also wanted to understand how else habitat does, or doesn’t, receive regulatory protection under the ESA, and what actually happens in section 7 consultations. This Friday, at a conference on Capitol Hill co-sponsored by the Environmental Law Institute and the Vanderbilt Law Review, I’ll be talking about the results. Three experienced ESA attorneys—Deputy Interior Secretary David Hayes, Defenders of Wildlife Vice President for Conservation Law Michael Senatore, and Hunton and Williams Counsel Andrew Turner—will then comment on the paper.
In addition to my talk, the conference features two other papers. One, co-authored by Ian Duncan and fellow CPR scholar David Adelman (both at the University of Texas), addresses liability issues associated with carbon sequestration. The other, by Stanford’s Buzz Thompson, considers whether the Coastal Zone Management Act could provide a useful model for federal legislation promoting integrated water resource management. If you’ll be in DC on Friday, I hope you’ll check it out (RSVP). The proceedings also will be viewable online.
Full textIn the 2005 Energy Policy Act, Congress recognized that energy and water supply issues are deeply intertwined, and required the Department of Energy (DOE) to report on their nexus and make recommendations for future action within two years. (42 USC 16319). DOE started this important work, but never finished it.
DOE’s initial report, issued in 2007, hinted at the complexity and seriousness of the energy-water nexus. It discussed both how supplying energy requires water and supplying water requires energy. For example, thermoelectric power plants (primarily coal-fired, natural gas-fired and nuclear plants) account for about 40% of all freshwater withdrawals in the United States, roughly equal to the amount of freshwater withdrawn for irrigated agriculture. For its part, water supply and treatment consume about 4% of the electricity generated domestically, and activities associated with water use (irrigation, water heating, clothes washing and drying) consume even more.
Yet our energy policies give scant attention to issues of water supply, and our water policies give scant attention to energy. Arguably, our law- and policy-making institutions are poorly suited to dealing with this extensive interconnectedness. Jurisdiction over water and energy issues is spread across more than two dozen House and Senate committees, well over a dozen federal agencies, 50 state legislatures, and countless state and local agencies.
Moreover, neither our energy policies nor our water policies are giving serious enough attention to the problem of climate disruption. Climate disruption will dramatically affect water supply, as the timing, type, and amount of precipitation all change. The impacts – from drought in some areas to flooding in others – will have many consequences for energy supply and use. Power plants that use huge amounts of freshwater for cooling are likely to confront new legal and economic constraints. Hydroelectric facilities built for old stream flow regimes will have to contend with new ones. The energy demands of the water supply sector will likely grow as desalination plants are built and water is pumped into dry areas from distant places. In these ways and many others, climate disruption is likely to bring many changes to the energy and water sectors. Yet law and policy are reacting slowly, and in some contexts not at all, to those changes.
Full textCross-posted from Environmental Law Prof Blog.
Last week, a federal district court in Virginia decided an urban stormwater case that may ultimately have far more significance than the Supreme Court’s more widely-watched decision in Los Angeles County Flood Control District v. Natural Resources Defense Council. The case is Virginia Department of Transportation v. U.S. Environmental Protection Agency, and it involves a challenge to a proxy TMDL for Accotink Creek, a Potomac River tributary in northern Virginia. On its face, that statement may not sound particularly intriguing or important, but it is, and a little background is in order.
Section 303 of the Clean Water Act requires states to identify waterways that do not meet water quality standards, and to develop “total maximum daily loads,” or TMDLS, for those waterways. In essence, TMDLs are pollution budgets. They usually identify which pollutants are causing impairment, and they then specify how much of a “load” of each offending pollutant the waterway could handle without being impaired. What happens next is largely up to the states. While EPA must step in to prepare a TMDL if the state fails to do so, states have broad discretion to decide whether and how to translate the TMDL into controls on individual sources.
The Accotink Creek TMDL used an innovative approach. A traditional TMDL would specify a daily load for each offending pollutant, and would express that load as a mass. For waterways impaired by urban stormwater runoff, however, that traditional approach doesn’t work very well, largely because saying exactly how much mass of each pollutant a waterway can accommodate each day is often quite difficult. Watershed scientists often have a much better sense of how much stormwater runoff a waterway can accommodate without being impaired, or even how much impervious cover in a watershed will trigger impairment. Consequently, the Accotink TMDL and several recent TMDLs developed in other states have used proxy measures of pollutant loading. For Accotink Creek, the proxy was the volume of stormwater runoff, and several TMDLs in Vermont have used similar approaches. In Maine and Connecticut, the proxy of choice has been impervious cover.
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