Thursday, January 21, 2021
Michael C. Blumm (Lewis & Clark Law), Michael Benjamin Smith (Lewis & Clark Law), Salmon and the Clean Water Act: An Unfinished Agenda, Envt’l L. Reporter (Forthcoming):
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.