Law, College of


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Published in NEBRASKA LAW REVIEW 83 (2004), pp. 305-361.


The Missouri River is representative of a nationwide phenomenon. The Law of the River is evolving from water quantity allocation, reflecting well-settled prior appropriation law and decades-old interstate compacts to broader ecologically-based requirements. From sturgeon to salmon to silvery minnows, every major river system in western United States is now managed, at least in part, pursuant to contemporary environmental legislation, which has begun to eclipse traditional water law. Just look to the Rio Grandel6 and the Klamath River17 for the extensive changes wrought by the ESA. The need for river restoration in order to meet ecological needs has been a compelling force, even on the heavily regulated and over-appropriated Colorado River.18 Meanwhile, on the Missouri, long-standing navigational directives are being influenced by the ESA and other environmental requirements.

My objective in this Article is two-fold: first, to show that the Master Manual revision process pursuant to the Flood Control Act asks the wrong questions and therefore cannot provide a complete solution for the Missouri River basin; and second, to suggest legislative change. I offer my voice to a long line of distinguished scholarship on Missouri River management with some trepidation, and with full knowledge that this Article is far from the definitive word on this complex and seemingly intractable controversy. To this end, the Article is not intended to be prescriptive but rather a springboard for further discussion.

The Flood Control Act, in attempting to be all things to all people, fails to prioritize or even promote sustainable national, regional, and local interests on the Missouri River. As a result, a long-term, comprehensive management strategy is unlikely to be forged from the long drawn-out revisions to the Master Manual. Neither can the ESA, standing alone, provide the answers.

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