The Quick and the Dead : Fish Entrainment, Entrapment, and the Implementation and Application of Section 316(B) of the Clean Water Act

This Article has three principal purposes. First is to explain the genesis of Section 316(b) by examining the adverse impacts caused by cooling water intake structures. Second is to provide a detailed description as to how Congress, EPA, the courts, state agencies, and litigants have interpreted Section 316(b). Third is to offer guidance and recommendations for more effective implementation of the Section. Ultimately, this article concludes that many agencies implementing Section 316(b) have misapplied cost considerations, misapprehended mitigation projects, and mishandled the operative language of Section 316(b). Part I begins by discussing the adverse environmental impacts cooling water intake structures inflict upon source water bodies. Part II views how Section 316(b) has evolved along with EPA's attempts to promulgate implementing regulations, and addresses the statutory framework of Section 316(b) and how it interrelates with the rest of the Section. Part III explains how courts, agencies, and disputants have interpreted the operative terms of Section 316(b), with special emphasis heaped on the more recent and most important activities and concludes that some early EPA decisions offer the best guidance for informed implementation of the Section. Part IV examines the relevant factors in determining whether a facility is complying with the requirements of Section 316(b), that is, whether the design, location, construction, and capacity of a cooling water intake structure reflects best technology available for minimizing adverse environmental impact. Part V discusses the role of costs in construing Section 316(b), and opines that both environmental costs and marginal costs to ratepayers deserve greater attention. Part VI examines the use of mitigation projects and maintains that Section 316(b) does not currently allow them to be used as substitutes for the technological prescriptions of the provision. Part VII addresses proposed legislative reform of Section 316(b) recently passed by the United States House of Representatives and finds that its enactment would further dilute the Section. Part VIII offers recommendations for better implementation of Section 316(b)