Even ‘unclassified’ streams merit protection in Missouri
By KEN MIDKIFF
Published Friday, October 31, 2008
(http://www.columbiatribune.com/2008/Oct/20081031Comm002.asp)

If the list of "classified" streams is consulted in the Missouri Code of State Regulations, Flat Branch doesn’t exist.

Neither does Brush Creek, which flows through Crown Center in Kansas City, nor River Des Peres, which originates at the zoo in St. Louis. There are similar nonexistent creeks and rivers in Springfield (Sequiota Creek), Joplin (Turkey Creek) and other urban areas of this state. There are literally hundreds of streams in rural areas that, as far as the classification system is concerned, don’t exist.

A bit of explanation: There are about 1,200 streams in this state that are afforded full protection - permits are required for discharges. Each of these 1,200 or so streams is given what is called "beneficial uses." All classified streams must support aquatic life (fish, crawdads, aquatic insects, macroinvertebrates, etc.) and must support recreation in and on the water (swimming, boating, water-skiing, fishing and so forth).

But streams that are not classified and that involve about 146,000 miles - or 85 percent - of Missouri’s streams don’t receive much, if any, attention from the Missouri Department of Natural Resources, the state agency that administers the federal Clean Water Act and the Missouri Clean Water Act. Although DNR might be excused from paying attention to streams that hardly exist except in wet spring weather, Flat Branch flows all of the time, as do the River Des Peres, Brush Creek, Sequiota Creek and thousands of rural streams throughout the state.

But why are some streams classified, and therefore protected, and others not? To answer this, it is necessary to go back into history. It seems the Missouri Clean Water Commission - a governor-appointed citizens’ group that has the statutory authority for adopting rules and regulations pertaining to our state’s water resources - followed the lead of the Missouri Department of Conservation way back in the ’70s and designated about 1,200 streams as "classified." Although things in that dim past are a bit murky, it seems the conservation department had listed those streams as important to that agency and the CWC then provided protection.

However, there was no criterion for the CWC to follow - unless tagging along behind the folks at the conservation department can be called a criterion. No doubt, the streams that the conservation department deemed as important were havens for fish that people like to catch and eat - bass, bluegill, goggle-eye, crappie, catfish, carp - but they missed quite a few streams that did not harbor quantities of these fish.

Fast-forward a few decades. When several citizens appeared before the CWC in 2003 and asked that their streams be "classified," members of the CWC learned there was no way of determining which streams should be considered. So, rather than dealing directly with the requests, DNR staffers were directed to come with a protocol - criteria that could be used in deciding whether a stream should be provided full protection. Staff members at DNR did that, and the protocol or criteria were approved by the CWC, although the measures have not been used to classify any stream.

But there’s a bit of a problem. The federal Clean Water Act - which DNR and CWC are guided by - doesn’t allow for a distinction between "classified" and "unclassified" streams but instead requires that all bodies of water are to be provided the same protections.

No doubt, DNR water protection program staffers will point out that the federal Clean Water Act does provide what is called "free from" standards for all streams and that those standards are enforced. There is, indeed, a long list in the federal Clean Water Act of things that streams are to be "free from": such things as stink, discoloration, unsightliness, nasty bottom deposits - essentially subjective standards. Who is to say how much stink is to be tolerated and how much amounts to a violation?
Not so with "classified" standards. When a discharge permit (called a state operating permit or a national discharge elimination system permit) is issued, there are definitive, objective standards included. These standards - such as the amounts of oil and grease - are measurable and don’t depend upon subjective human considerations before enforcement can occur. There are objective standards for each beneficial use, and DNR puts those standards into each discharge permit.

But there’s one other factor. I can find no instance in which DNR has brought an enforcement action for violating the "free from" standards on an "unclassified" stream.

Flat Branch exists. It has flowing water in it year-round. It is also much abused; litter and debris fill the stream and its banks. Occasionally, the water turns black. DNR and the CWC don’t do anything to protect this resource, even though the city of Columbia has spent millions in building parks with a central focus on this stream and the MKT Trail parallels it for several miles.

It is high time that the Missouri Clean Water Commission abides by the legal requirements of the federal Clean Water Act and extends real protection to all streams in the state.