Source Publication Abbreviation
Drake J. Agric. L.
Water quality regulations typically focus on chemical and bacterial pollutants, such as pesticides, detergents, industrial wastes, and sewage. Far less attention has been paid to the flow and function of sediments, known to most of us as mud. Sediments, however, are just as important to the ecological integrity of many rivers as the quality and quantity of the water itself. On big inland rivers like the Missouri, Mississippi, and Colorado Rivers, sediments are essential to the formation of sandbars, islands, oxbows, and floodplains, which in turn provide habitat for native fish, wildlife, and invertebrate species. Also, sediments carried by the Missouri River downstream through the Mississippi River play a role in creating and maintaining the coastal wetlands of the Mississippi Delta.
But sediment is also a pollutant under the Clean Water Act (CWA).' Sediments can smother and destroy spawning and foraging areas. They can carry excess nutrients from agricultural and urban runoff, causing algae blooms, hypoxia, and other adverse conditions.
Conflicts over the dual nature of sediment came to a head in the Missouri River basin in 2008 when the State of Missouri refused to issue a CWA 401 Certification for the Army Corps of Engineers' habitat restoration projects.2 The state ordered the Corps to stop discharging sediments into the Missouri River, stating that such discharges would violate the state's water quality standards.' Caught between a rock-the State of Missouri-and a hard place-a biological opinion (BO) compelling habitat restoration to prevent jeopardy to endangered species-the Corps turned to the National Academy of Sciences for advice.
This Article analyzes the perceived conflict between the CWA's demand for clean water, which in some, but not all, cases means clear water, and the "no jeopardy" requirement of the Endangered Species Act (ESA),' and determines that the two statutes are not in conflict at all. Under the CWA, water quality managers are tasked with creating standards that promote a river's uses. 4 Native species habitat is one use that must be protected under the CWA," just as it must be protected under the ESA.16 Water quality standards should promote that use by recognizing that the Missouri River, and others like it, historically carried far greater quantities of sediments than are present today, and that the species which have evolved in a sediment-rich environment require sediment delivery to continue at the proper time, place, and manner. BOs issued under the ESA should, therefore, guide federal and state water quality managers in setting and approving water quality standards.
Zellmer, Sandra B., "Mudslinging on the Missouri: Can Endangered Species Survive the Clean Water Act?" (2011). Faculty Law Review Articles. 159.