Hydroelectric energy is the oldest major source of non-carbon, renewable energy and is the only conventional renewable resource in the current energy mix. Increased hydro capacity would seem to be a key element of any United States energy policy designed to promote the greater use of renewable resources. However, for several decades hydro has been perceived as a mature, fully developed technology. This article argues that any effort to stimulate substantial new hydro capacity will face a series of environmental legal and policy constraints. Efforts to adapt to global climate change will further complicate efforts to increase hydro electric generation. Beginning in the late 1960s, the United States stopped building new, large dams. A host of environmental laws such as the Clean Water Act and the Endangered Species Act do not displace hydropower generation, but these laws impact individual dam operations and can result in the partial or even total subordination of power generation to downstream flow regulation. These laws reflect a deeper shift in our thinking about river functions. The idea of a "normative river" has emerged. The "normative river" accepts the reality that many rivers have been fundamentally altered by dams but seeks to create a new managed hydrograph that performs a reasonable range of pre-dam river functions.
The Legal-Political Barriers to Ramping up to Hydro,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol86/iss1/11