AuthorZellmer, Sandra B.

TABLE OF CONTENTS INTRODUCTION 172 1.30 by 30 and America the Beautiful 174 II. FRESHWATER ECOSYSTEMS, BIODIVERSITY, AND CLIMATE 181 A. Characteristics of Freshwater Ecosystems 181 B. Threats to Freshwater Resources and Species 183 C. Freshwater Resources and Climate Change 186 III. FRESHWATER CONSERVATION AND COUNTERVAILING INTERESTS 188 A. Water and Land Are Intertwined but Distinct 188 B. The Politics and Law of Freshwater Resource Management 190 IV. EXISTING LEGAL TOOLS GOVERNING FRESHWATER RESOURCE MANAGEMENT 195 A. CWA 196 B. WSRA 203 C. The Federal Power Act 209 D. Federal Dams and the ESA 216 1. Corps and Bureau Projects 217 2. The ESA's Application to Federal Dams 219 CONCLUSION 226 INTRODUCTION

A global movement is underway to protect 30 percent of the earth's lands and waters from human exploitation by 2030. More than one hundred countries support this goal as a means of combatting climate change and slowing the pace of species extinction, (1) both of which are accelerating at an unprecedented rate. (2) The two threats are closely intertwined. The greatest drivers of species extinction are climate change and habitat loss; by the same token, the loss of intact, functioning habitat and biodiversity diminishes the capacity for climate resilience. (3)

In the United States, one of President Biden's earliest executive orders, issued his first week in office, established a national goal to conserve at least 30 percent of U.S. lands, water, and oceans by 2030 (the so-called "30 by 30" initiative). (4) According to David Shiffman, writing for Scientific American, 30 by 30 "represents the largest shift in United States science-based biodiversity conservation policy since the Endangered Species Act." (5)

Despite its vow to pursue a wide-sweeping, all-of-government approach, (6) Biden's 30 by 30 initiative overlooks a critical component of the conservation goal. The Administration's blueprint, known as "America the Beautiful," highlights the need to conserve terrestrial and marine ecosystems and contemplates measures that may be necessary to meet the 30 by 30 goal with respect to them. (7) However, America the Beautiful pays virtually no attention to freshwater ecosystems. (8)

Is this an inadvertent oversight? Freshwater ecosystems are among the most endangered ecosystems in the world due to diminished streamflows, pollution, wetlands destruction, nonnative species' invasions, and hydrologic modifications. (9) In the United States, the four groups of species most at risk of extinction are those that depend upon rivers, streams, and lakes: fish, amphibians, mussels, and crayfish. (10)

What might explain the omission of freshwater ecosystems from America the Beautiful and, for that matter, the 30 by 30 executive order? Perhaps even more than migratory wildlife and bird species, waterbodies do not respect artificial political boundaries. (11) Moreover, extremely high institutional fragmentation exists in the management of freshwater resources. (12) Jurisdictional barriers to holistic watershed management exist both horizontally--among federal agencies, in particular--and vertically, among federal, tribal, state, and local authorities. (13)

Complexity arises from institutional fragmentation and the (literally) fluid nature of freshwater. So does controversy. Throughout American history, proposals for almost any type of water law reform have encountered fierce opposition. (14) If the Biden administration were to highlight freshwater conservation deficiencies and potential reforms, it could jeopardize the entire 30 by 30 initiative. (15)

This Article is an exploration of federal freshwater conservation law, along with a handful of potential reforms that could advance the 30 by 30 objective without requiring statutory revisions by Congress. The 30 by 30 concept is covered in Part I of this Article. Part II highlights the unique attributes and values of freshwater ecosystems, focusing on lakes, rivers, streams, and wetlands, and assesses the effects of climate change on them. Part III illustrates the seemingly intractable nature of conflicts over water resources and the conflagrations typically sparked by proposals for reform. Part IV analyzes the provisions of existing federal laws that protect the quality, quantity, and integrity of freshwater ecosystems--specifically, the Clean Water Act (CWA), the Wild & Scenic Rivers Act (WSRA), federal hydropower, reclamation, and flood control statutes, and the Endangered Species Act (ESA). Part IV also identifies several ways these laws could be implemented more effectively, focusing primarily on the agencies' ability to utilize statutory planning requirements to promote biodiversity and climate resilience. The CWA is an exception; here, the focus is on the statute's jurisdictional scope and the troublesome yet foundational concept of "waters of the United States." (16) The Article concludes by summarizing the tools that should be deployed to conserve 30 percent of the nation's freshwater resources by 2030.


    In 2019, a group of internationally renowned scientists ignited interest in the 30 by 30 concept by making it the centerpiece of the Global Deal for Nature, a proposed companion pact to the Paris Climate Agreement. (17) These scientists claim that the Paris Agreement, which focuses on curbing greenhouse gas emissions, "will do little by itself to save the planet's collapsing biodiversity or preserve the massive ecosystems upon which humanity depends--and which we are fast degrading." (18) The Global Deal for Nature states plainly, "beyond 1.5[degrees]C, the biology of the planet becomes gravely threatened because ecosystems literally begin to unravel." (19)

    Around the same time as the Global Deal for Nature, the International Union for the Conservation of Nature (IUCN) proposed a 30 percent by 2030 milestone as a critical step for marine conservation. (20) According to the IUCN, "[p]rotected areas are the cornerstone of biodiversity conservation, and studies document that well-managed reserves are far more effective in safeguarding biodiversity than are other forms of land use." (21)

    What does it mean to be "protected"? According to currently accepted international and domestic standards, for an area to be included, it must be a clearly defined geographical space, which is identified, dedicated, and managed in an intact natural condition. (22) Protection must be durable, ideally permanent, through legally enforceable or other effective means, where development and extractive uses that would diminish the area's ecological function are limited or prohibited. (23)

    The scientific community has reached widespread agreement on the importance of protecting large areas in an intact, functioning state, where vital ecological processes can occur with little human intervention. (24) However, even the oldest and arguably greatest systems of conservation lands in the United States -- the national parks--simply do not include sufficient habitat to sustain viable populations of fish and wildlife species within the parks, much less beyond park boundaries. (25)

    This means that ecological connectivity is equally important to biodiversity conservation and climate resilience. At present, around 15 percent of the global terrestrial base is protected, but only about half of that is interconnected. (26) Through sophisticated modeling and mapping techniques, scientists have identified significant ecological gaps in our existing protected land systems. (27) Although species had been able to move to more suitable habitats during past climate swings, "in the current climate crisis and with reduced connectivity of natural landscapes, species may be unable to move fast enough to track shifting climatic envelopes or at all." (28) Thus, meaningful conservation initiatives require "coordinated planning and management among federal, state, tribal, and local entities as well as private landowners." (29)

    The United States came to the 30 by 30 table relatively late in the game. (30) However, within days of taking office, President Biden embraced 30 by 30 by issuing an executive order declaring a national all-of-government goal to conserve at least 30 percent of U.S. lands and freshwater and 30 percent of U.S. ocean areas by 2030. (31)

    Is there any there there? (32) Although it could be characterized as a glib soundbite, according to former Secretary of the Interior Bruce Babbitt and other conservation leaders, 30 by 30 has the potential to provide a "synthesizing, consolidating, organizing" theme that breaks down jurisdictional barriers and supercharges the biodiversity-climate movement. (33) Milestones and targets such as 30 by 30 may simplify policy strategies and provide evocative concepts that generate media attention and public support. (34)

    Going forward, Biden's executive order directed officials of the land- and water-managing agencies of the Administration to prepare a preliminary report to describe how the United States may meet the 30 by 30 goal. (35) The agencies issued a report, called "America the Beautiful," in May 2021. (36) It describes a ten-year, locally led campaign to conserve and restore the lands and waters upon which we all depend and that bind us together as Americans. (37)

    America the Beautiful emphasizes a third goal. In addition to addressing climate change and protecting biodiversity, it prioritizes something quite different: equitable access to nature. (38) In fact, one of the first outreach efforts of the Department of the Interior, whose agencies manage 18 percent of the nation's lands, (39) sought input not on conservation but rather on removing "barriers that underserved communities and individuals may face in participating in recreation opportunities on [Interior]-managed public lands and waters." (40)

    Half of the six focus areas flagged by America the Beautiful are aimed at expanding outdoor access and creating jobs. (41)...

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