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In the following paragraphs, we discuss the role of the Clean Water Act and the
Safe Drinking Water Act in regulating surface water and groundwater resources.
8.2.1.1 The Clean Water Act
The Clean Water Act (CWA) is the primary water regulation mechanism that also
affects the energy sector. The CWA governs surface water quality but is largely
silent on groundwater. The CWA has been interpreted by courts to govern quantity
indirectly, in that minimum in-stream flows have been found to be a valid water
quality criterion. In-stream flow requirements impact permitting of removal of
water from river systems for a variety of uses, from hydroelectric power plants to
municipal and irrigation withdrawals.
At the federal level, the EPA is charged with enforcing the provisions of the
CWA, which it does by issuing pollutant discharge permits for point-source polluters through the National Pollution Discharge Elimination System (NPDES).
In keeping with the architecture of the federal system, the CWA also provides an
avenue for states to assume primacy for drafting and enforcing regulations in
compliance with the CWA.
Primacy is based on the notion that state regulators, rather than federal ones, are
more familiar with local conditions and therefore better able to adapt federal laws to
those conditions while implementing enforcement regimes. In states like California,
where the linkages between water services and energy use are clear and significant,
primacy has enabled state regulators to tailor programs serving local needs for water
and energy conservation. However, shifting the enforcement authority to state
regulators also shifts the costs of enforcement to state budgets. Asserting primacy
may also expose state regulators to more direct pressure from users wishing to skirt
or soften those regulations.
Most states have applied for and been delegated primacy with respect to the
CWA, many in the years immediately following the Act’s initial passage in 1972. As
of January 2019, the only states not authorized to administer the program were
Idaho, Massachusetts, New Hampshire, and New Mexico, although Idaho began
transitioning to state administration of the system in 2018 and expects to take
complete control by 2021. The EPA also remained the jurisdictional authority for
the District of Columbia, Puerto Rico, and US territories in the Pacific.
The CWA encompasses both pollutant discharges and thermal discharges.
The justification for linking thermal and pollutant discharges is straightforward:
increases in water temperature can reduce the ability of a water body to hold
dissolved oxygen, which in turn can affect the water body’s suitability for aquatic
life or its ability to promote bacterial decomposition of organic matter. According to
the USGS, over 40% of all US water withdrawals in 2015 were used for thermoelectric power; most of those withdrawals were from surface sources.
Figure 8.1 shows the geographic breakdown of water withdrawals used for thermoelectric power. The CWA’s recognition of the synergistic effects between thermal
pollutants and other contaminants provides critical leverage for increasing water
B. Kinne and D. Magee
In the following paragraphs, we discuss the role of the Clean Water Act and the
Safe Drinking Water Act in regulating surface water and groundwater resources.
8.2.1.1 The Clean Water Act
The Clean Water Act (CWA) is the primary water regulation mechanism that also
affects the energy sector. The CWA governs surface water quality but is largely
silent on groundwater. The CWA has been interpreted by courts to govern quantity
indirectly, in that minimum in-stream flows have been found to be a valid water
quality criterion. In-stream flow requirements impact permitting of removal of
water from river systems for a variety of uses, from hydroelectric power plants to
municipal and irrigation withdrawals.
At the federal level, the EPA is charged with enforcing the provisions of the
CWA, which it does by issuing pollutant discharge permits for point-source polluters through the National Pollution Discharge Elimination System (NPDES).
In keeping with the architecture of the federal system, the CWA also provides an
avenue for states to assume primacy for drafting and enforcing regulations in
compliance with the CWA.
Primacy is based on the notion that state regulators, rather than federal ones, are
more familiar with local conditions and therefore better able to adapt federal laws to
those conditions while implementing enforcement regimes. In states like California,
where the linkages between water services and energy use are clear and significant,
primacy has enabled state regulators to tailor programs serving local needs for water
and energy conservation. However, shifting the enforcement authority to state
regulators also shifts the costs of enforcement to state budgets. Asserting primacy
may also expose state regulators to more direct pressure from users wishing to skirt
or soften those regulations.
Most states have applied for and been delegated primacy with respect to the
CWA, many in the years immediately following the Act’s initial passage in 1972. As
of January 2019, the only states not authorized to administer the program were
Idaho, Massachusetts, New Hampshire, and New Mexico, although Idaho began
transitioning to state administration of the system in 2018 and expects to take
complete control by 2021. The EPA also remained the jurisdictional authority for
the District of Columbia, Puerto Rico, and US territories in the Pacific.
The CWA encompasses both pollutant discharges and thermal discharges.
The justification for linking thermal and pollutant discharges is straightforward:
increases in water temperature can reduce the ability of a water body to hold
dissolved oxygen, which in turn can affect the water body’s suitability for aquatic
life or its ability to promote bacterial decomposition of organic matter. According to
the USGS, over 40% of all US water withdrawals in 2015 were used for thermoelectric power; most of those withdrawals were from surface sources.
Figure 8.1 shows the geographic breakdown of water withdrawals used for thermoelectric power. The CWA’s recognition of the synergistic effects between thermal
pollutants and other contaminants provides critical leverage for increasing water
B. Kinne and D. Magee