Salmon and the Clean Water Act: An Unfinished Agenda

7 Pages Posted: 14 Dec 2020 Last revised: 2 Feb 2021

See all articles by Michael C. Blumm

Michael C. Blumm

Lewis & Clark Law School

Michael Benjamin Smith

Lewis & Clark Law School

Date Written: November 30, 2020

Abstract

Salmon are perhaps the quintessential indicator species for water quality, as they require both sufficient quality and quantity to migrate and spawn. Columbia Basin salmon have been listed under the Endangered Species Act (ESA) for over a quarter-century in large part due to inadequate water flows and poor water quality. A half-century ago, long before the listings, the modern Clean Water Act promised fishable waters. This article explains that this is a promise largely unkept due to implementing agencies’ evasion and disinterest. Recent litigation, however, offers some hope that the statute may yet provide a viable path towards protecting and restoring Columbia Basin waters to the benefit of endangered salmon.

From the U.S. Environmental Protection Agency’s (EPA’s) unwillingness to regulate dams to a reluctance by both EPA and the states to establish total maximum daily loads on the Columbia River to a wholesale lack of oversight of pollution from salmon hatcheries, the implementing agencies have failed to use the Clean Water Act regulation to meaningfully restore salmon runs. This article tells that story in some detail. It also reviews a series of recent cases in which environmental plaintiffs have sought to remedy those shortcomings. Their successes thus far suggest the possibility of a more meaningful implementation of the statute that may help recover listed salmon so that they no longer need ESA protection.

Keywords: Clean Water Act, Salmon, Endangered Species Act, Hatcheries, Dams, Water Pollution

JEL Classification: K23, K32, Q22, Q24, Q25, Q28, Q54

Suggested Citation

Blumm, Michael C. and Smith, Michael Benjamin, Salmon and the Clean Water Act: An Unfinished Agenda (November 30, 2020). 51 Environmental Law Reporter 10109 (2021), Available at SSRN: https://ssrn.com/abstract=3739593 or http://dx.doi.org/10.2139/ssrn.3739593

Michael C. Blumm (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
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United States
503-768-6824 (Phone)
503-768-6701 (Fax)

Michael Benjamin Smith

Lewis & Clark Law School

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States

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