Mudslinging on the Missouri: Can Mud-Loving Species Survive the Clean Water Act?

Drake Journal of Agricultural Law, Vol. 15, 2011

16 Pages Posted: 14 Feb 2011 Last revised: 28 Oct 2013

See all articles by Sandra B. Zellmer

Sandra B. Zellmer

University of Montana - Alexander Blewett III School of Law

Date Written: February 13, 2011

Abstract

Sediment - commonly known as mud - is critical to the ecological health of many rivers. But sediment is also a pollutant under the Clean Water Act (CWA). The dichotomy came to a head when the state of Missouri refused a 401 Certification for habitat restoration projects on the Missouri River and ordered the Corps of Engineers to stop discharging sediments. Caught between a rock - the state - and a hard place - a biological opinion compelling habitat restoration for endangered species - the Corps turned to the National Academy of Sciences for advice.

This paper analyzes the perceived conflict between the CWA’s demand for clean water and the “no jeopardy” requirement of the Endangered Species Act (ESA), and determines that the conflict is illusory. Under the CWA, water quality managers are tasked with creating standards that protect designated uses. Species’ habitat is a use that must be protected under the Act, just as it must be protected under the ESA, and biological integrity is a key objective of the CWA, just as it is under the ESA. It makes sense, then, that biological opinions should guide decision-makers in setting and approving water quality standards. When it comes to sediment-rich, interstate rivers and other waterways, the Academy’s report is “spot on” - effective federal and state coordination is essential for setting appropriate water quality standards, and a one-size-fits-all approach will not work.

Keywords: ESA, CWA, Water Quality, Integrity, Jeopardy

JEL Classification: K32

Suggested Citation

Zellmer, Sandra B., Mudslinging on the Missouri: Can Mud-Loving Species Survive the Clean Water Act? (February 13, 2011). Drake Journal of Agricultural Law, Vol. 15, 2011, Available at SSRN: https://ssrn.com/abstract=1760906

Sandra B. Zellmer (Contact Author)

University of Montana - Alexander Blewett III School of Law ( email )

Missoula, MT 59812-0002
United States
406-243-6653 (Phone)

HOME PAGE: http://www.umt.edu/law/faculty/directory/default.php?ID=5355

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