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Missouri is riddled with tens of thousands of miles of creeks, trickles and rivulets that get fewer environmental protections than the state’s main rivers and streams.
Now an environmental group is challenging the U.S. Environmental Protection Agency to force Missouri to act. In a federal lawsuit, the Missouri Coalition for the Environment says the regulatory agency has left the state’s so-called “unclassified” streams in a “legal limbo” for years, threatening the safety of water throughout the state.
Larger bodies of water, like the Current River, above, are generally covered by the Clean Water Act, but environmentalists urging the EPA to act say the state’s many “unclassified” streams eventually trickle into the more regulated ones. Photo by Karen Elshout
As Attorney General Chris Koster prepares to host a symposium this week on water quality at the Lake of the Ozarks, coalition members say that focusing on the state’s largest bodies of water won’t solve the problem.
Kathleen Logan Smith, the coalition’s executive director, said even unclassified trickles eventually flow into classified waters, contributing to the state’s struggles with contamination at some of its most popular waters.
“The guy downstream in the classified waters is going to have to go and make sure what’s coming out of his pipe isn’t going to kill fish,” Logan Smith said. “But the guy upstream doesn’t have to do that. And that’s the problem.”
The Department of Natural Resources has announced at least 35 public beach closures this year due to high levels of E. coli bacteria, a pathogen that can sicken or kill those who ingest it.
The EPA alerted Missouri officials in 2000 that the state’s unclassified streams might conflict with federal law. Yet despite two rewrites of state water quality regulations and a federal consent decree, the lack of classification for every four out of five miles of Missouri’s streams continues.
Earlier this year, an administrative work group’s effort to craft a solution fell apart after what one DNR official called “universal displeasure” with the proposed language.
Despite such amenities as gondolas, fountains and walking trails, Brush Creek, a central feature of Kansas City’s upscale Country Club Plaza, is considered an “unclassified” stream by the Missouri Department of Natural Resources. Photo by Scott Lauck
The problem, regulators say, is the potential cost – both to the state, which would have to conduct studies to classify thousands of miles of streams, and to cities and industries along those streams whose sewage systems could face stricter environmental scrutiny.
Terry Satterlee, an environmental lawyer with Shook, Hardy & Bacon who has been involved in the argument over unclassified streams, said her municipal and agricultural clients already face escalating costs and regulation.
She said no one disputes that more Missouri streams ought to be classified. But she said the coalition’s approach could bring a hefty price with little benefit.
“It’s a lot of time and effort by state employees, or by private property owners, to declassify streams that aren’t really streams,” Satterlee said.
Under the 1972 Clean Water Act, all “waters of the state” are expected by default to be suitable for swimming and fishing. Not every body of water will meet that lofty standard, so the law allows states to exempt waters by conducting scientific studies of their uses.
The problem, as the coalition sees it, is that the vast majority of Missouri’s miles of streams have no assigned use whatsoever. The state records a classification for roughly 3,700 stream segments in the state, totaling nearly 25,000 miles. But another 159,000 miles have no assigned use and are therefore “unclassified.”
Many unclassified streams are intermittent ditches that are usually dry and lie at the headwaters of a stream system. In many cases, one portion of a stream is classified while a portion further upstream is not.
Some unclassified streams, however, are substantial waterways with names of their own. One prominent example is Brush Creek in Kansas City, which flows by some of the city’s toniest areas. The coalition also points to Kiefer Creek, a partially unclassified stream that flows through Castlewood State Park near St. Louis. The creek has been found to have high levels of E. coli.
Of course, to say that a stream is unclassified is not to say that it is polluted. Every water body falls under a general level of protection in the state regulations, which say water must be “free from oil, scum, and floating debris” and other easily described conditions.
Classified bodies of water must meet additional regulations, which often take the form of specific measurements of toxins and pollutants. The Missouri Coalition for the Environment wants those regulations applied to the unclassified waters as well, arguing that crystal clear water can still contain, for instance, high levels of E. coli.
Still, reviewing that many streams – and proving that numerous dry ditches don’t have to be rated for swimming – is a daunting task at a time of thin budgets, as a discussion at a recent Missouri Clean Water Commission meeting illustrates. According to a transcript posted on the commission’s website, its chairman, Ron Hardecke, asked in March if the EPA planned to pay for the scientific studies it appeared to be mandating.
“I’m tapped out, Ron,” responded John DeLashmit, chief of the Water Quality Management Branch at the EPA’s Region 7 office in Kansas City, Kan.
“Get your checkbook out, John,” Hardecke replied.
Another commissioner, William Easley Jr., quipped: “Get some stimulus money.”
Hardecke did not return a call seeking comment.
Although the EPA is the defendant in the lawsuit, the agency has made it clear that it wants the state to act. In an e-mailed statement, the EPA said it is “committed to ensuring that appropriate standards and protections are in place for all waters covered by the Clean Water Act in the State of Missouri.” It said it would continue working with Missouri officials, although “the state rulemaking process on these issues has not progressed as hoped in recent months.”
In May, DNR put a temporary halt to efforts to classify the streams. Leanne Tippett Mosby, the acting director of DNR’s Division of Environmental Quality, told the Clean Water Commission in May that there was still time to address the issue by 2012, when the next reassessment of water quality standards is due. But the environmental coalition, which said the work group has proceeded in fits and starts since 2006, concluded “the state administrative process was futile.”
A spokesman for DNR, Judd Slivka, said the department was reviewing the lawsuit.
This is not the first time the Missouri Coalition for the Environment has sued the EPA over alleged failures to enforce the Clean Water Act. A 2003 lawsuit also claimed, among other grievances, that the unclassified streams had persisted too long. A 2004 settlement agreement and consent decree, however, failed to resolve the issue.
Logan Smith, the coalition’s executive director, said moving the issue from the regulatory board to the courts wouldn’t be like waving a magic wand.
“In the next 20 years of the Clean Water Act, we’ll see an improvement,” she said. “You’re not going to see anything overnight.”
The case is Missouri Coalition for the Environment v. Lisa P. Jackson and the U.S. Environmental Protection Agency, 2:10-cv-4169.
