Law, College of


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Zellmer in Drake Journal of Agricultural Law (2011) 16. Copyright 2011, Drake Law School. Used by permission.


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. Native species habitat is one use that must be protected under the CWA, just as it must be protected under the ESA. 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.

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