Uncertainty and Conservatism in Assessing Environmental Impact under §316(b): Lessons from the Hudson River Case

Initially, regulation of cooling water intakes under §316(b) was extremely conservative due to the rapid increase predicted for generating capacity, and to the uncertainty associated with our knowledge of the effects of entrainment and impingement. The uncertainty arose from four main sources: estimation of direct plant effects; understanding of population regulatory processes; measurement of population parameters; and predictability of future conditions. Over the last quarter-century, the uncertainty from the first three sources has been substan-tially reduced, and analytical techniques exist to deal with the fourth. In addition, the dire predictions initially made for some water bodies have not been realized, demonstrating that populations can successfully withstand power plant impacts. This reduced uncertainty has resulted in less conservative regulation in some, but not all venues. New York appears to be taking a more conservative approach to cooling water intakes. The conservative approach is not based on regulations, but in a philosophy that power plant mortality is an illegitimate use of the aquatic resources. This philosophy may simplify permitting decisions, but it does not further the development of a science-based definition of adverse environmental impact.