President Clinton has devised another way to bypass Congress and the Constitution, say property rights activists.

Rather than sign an executive order, he simply announces a program and directs the federal agencies and the state and local governments to treat it as though it were the law.

That's what Clinton and Al Gore did to advance the Clean Water Action Plan, which the vice president unveiled Feb. 19, 1998, the 25th anniversary of the Clean Water Act. There was no ceremonial signing of an executive order. Gore simply announced the plan, and the president ordered the federal agencies, states, and local governments to begin implementing its 111 mandates, dubbed "key actions."

Critics say the plan spells massive federal land use control (with stiff fines for violations) over both federal and private land.

"The Clean Water Action Plan is perhaps the strongest anti-agricultural document Washington has ever produced," says J. Zane Walley of the Paragon Foundation, a non-profit property-rights group in Almogordo, N.M., which has assumed a major role in fighting the plan.

"It puts all land uses in the entire United States under the inconsiderate thumb of a massive and overwhelming blanket of powerful federal agencies -- the Environmental Protection Agency, U.S. Fish and Wildlife Service, the Department of Agriculture," says Walley.

"Even the formerly toothless U.S. Geological Survey is empowered to make decisions concerning water use," he observes, while "80 percent of private land that has riparian areas (land next to a river, lake, or ocean) could have designated stream and river corridors by 2002. Emphasis is on 'strong enforcement.' Private land owners would face fines of up to $25,000 for each day that EPA concludes they are in violation of the Clean Water Action Plan."

In the name of guaranteeing "fishable and swimmable" water, the plan calls for:

• Implementation of federal authority over nearly half the watersheds in America.

• Closure of 20,000 miles of road on public lands to commercial and recreational use, with 5,000 miles of road to be obliterated by the year 2002.

• Creation or restoration of almost 1 million acres of wetlands (100,000 acres a year by 2005).

• Acquisition of 2 million miles of conservation buffers along river corridors: with "corridors" defined as "ranging in size from a few feet on each side of a stream to several miles wide on large river systems. Each corridor should extend across the stream banks, the floodplain, and the valley slopes. It should also include a portion of upland for the entire stream length to maintain functional integrity."

• Restoration of 25,000 miles of stream corridors on public lands. Any restoration would include "Blockage of artificial drainage systems, removal or setback of artificial levees, and restoration of natural patterns of floodplain topography."

• Additional procedures for Bureau of Land Management livestock grazing permit renewals.

"The Clean Water Action Plan simply justifies the Clinton administration's agenda to block the use of public lands, not only by agriculture, but also by mining, logging, and petroleum," says Walley.

Henry Lamb, executive vice president of Environmental Conservation Organization (ECO) and chairman of Sovereignty International, agrees.

In Lamb's view, "The Clean Water Action Plan is the mechanism for creating the corridors that are called for in the Wildlands Project" -- referring to the ongoing program being promoted by environmentalists, including many within the administration, to return vast areas of the country to wilderness.

"The American Rivers Initiative has the same purpose, but would take too long and address only certain corridors," said Lamb, "The Action Plan designates up to 2 million miles of waterways and the flood plains as buffer zones. The flood plain of the waterways is to be under federal jurisdiction and designed to be the corridors connecting the core wilderness areas. More than half the country will be affected by this water plan," he noted.

The White House nearly got away without challenge. However, a small group of local governments in Wyoming is taking on the administration in a David and Goliath battle which could thwart this latest Clinton-Gore action.

The Wyoming Association of Conservation Districts, comprised of the state's 34 conservation districts, filed a legal action Wednesday against the Environmental Protection Agency, the Departments of Agriculture and Interior, the Army Corps of Engineers, and the National Oceanic and Atmospheric Administration and their respective heads, and called for an injunction -- temporary or permanent -- against further implementation of the Clean Water Action Plan.

The 31-page complaint was filed in the federal district court for the district of Colorado.

An intent-to-sue notice had been filed this Feb. 19, the one-year anniversary of the announcement of the Clean Water Action Plan. Interested parties were invited to join WACD.

The complaint lists 34 plaintiffs -- groups and individuals from 10 states, with others expected to sign on. Besides WACD are the Wyoming County Commissioners Association, conservation district associations of Florida, Mississippi, and Colorado, four counties in Arkansas, the Arizona and New Mexico Coalition of Counties for Stable Economic Growth, the South Dakota Cattlemans Association, New Mexico Cattle Growers Association, Take Back Arkansas, and People for the U.S.A.

"We're suing over how they put the plan together and the laws they violated as they developed it," explained Bobbie Frank, WACD executive director, when contacted by phone.

Specifically, the complaint maintains that the action plan violates the National Environmental Protection Act and other statutes and offers "virtually no scientific, economic, political, or sociological evidence to support its basis for the mandates." Moreover, "the public was never allowed to review a draft plan or comment on any parts of the plan before it was adopted and implemented."

"Actually, the plan violates at least five federal laws, two executive orders, and the Fifth Amendment," said Frank. "In addition to NEPA, it violates the Clean Water Act itself that calls for state and local government coordination -- and there was none; violated the Intergovenmental Coordination Act; the Regulatory Flexibility Act; the Unfunded Mandates Act; and the National Environmental Quality Act; the Administrative Procedures Act; the Federal Land Policy and Management Act; the National Forest Management Act; and the Multiple Use Sustained Yield Act."

Frank paused for breath before continuing.

"The plan is nothing more than an administrative directive from Gore," she said. "In November 1997, he sent a two-page letter to the EPA and the U.S. Department of Agriculture ordering them to develop a plan within 90 days, and they did. The initial order to EPA and USDA was posted in the Federal Register, but there was no comment period, no request for public input. It was done completely illegally."

According to Frank, "They (the agencies) are now treating this plan as though it's law. They're citing it as authority for their actions -- and they're getting away with it.

"I'll tell you this," she added, "I read the action plan right after it was issued. It wasn't like Gore offered a draft and said, 'what do you think?' It was a done deal and already published on the web. I sat down and read it through. All of it. I just sat there thinking, 'Oh my, oh my.'"

Once the initial shock wore off, Frank began rallying opposition within the conservation districts. Eventually it was decided that legal action was the only recourse to the mandates being rolled out from Washington.

"This took time," she recalled. "Most people don't realize that conservation districts are statutorily charged with protecting water quality. We are the primary implementers of projects that protect water quality -- that's what our business is. We don't have a history of litigating. We're not used to this."

A deciding factor in overcoming reluctance to enter the legal arena came when the federal government -- offering a foretaste of life under the plan -- withheld $900,000 Congress had allocated to Wyoming under the Clean Water Act, which the conservation districts use for on-the-ground stream restoration projects.

The withholding of funds was in response to the conservation districts' refusal to comply with a mandate. In December the EPA had ordered the states to complete a "Unified Watershed Assessment," identifying watersheds that are "impaired." No statutory authority was given for requiring watershed assessments, only an earlier memo that had been sent out in June, which cited the Clean Water Action Plan as the basis for its authority.

WACD refused to go along.

"Watersheds aren't mentioned in the Clean Water Act," said Frank. "The act discusses bodies of water, not watersheds, so we refused to categorize our watersheds or list them as impaired. Wyoming had submitted reports on the quality of water bodies, which is required by Section 303 of the Clean Water Act. That's all we submitted: a list of impaired water bodies. Not watersheds.

"We flatly refused to categorize our watersheds," Frank continued. "We were already doing some pretty heavy-duty watershed management planning on our own, but that takes time. We were looking at over two more years to do it right and to do it at the local level.

"Along comes the EPA and tells the state 'we want you to categorize your watersheds as impaired' -- and we were to do it in less than 90 days. The regional EPA office came here twice and positively hammered on Wyoming to get us to categorize our watersheds, but we never did."

Following the fracas with the EPA and the threat to withhold funds the WACD began exploring the idea of seeking a remedy in the courts.

Karen Budd-Falen, counsel for the Federal Lands Legal Foundation based in Cheyenne and a well-known attorney on administrative law, Wyoming, agreed to handle the case, with the Paragon Foundation in New Mexico assuming much of the financial load.

"The development and implementation of the Clean Water Action Plan has violated numerous federal laws," says Budd-Falen. Here, a few specifics as spelled out in the suit:

• The National Environmental Policy Act commands federal agencies to complete an environmental impact statement or environmental assessment for "every recommendation or report on proposals for legislation and other major federal actions significantly affecting the quality of the human environment." The authors of the Action Plan didn't do this. No EIS or EA was done for either the plan itself or any of the 111 key actions.

• The Intergovernmental Cooperation Act is designed to foster cooperation and coordination of policies and activities between the levels of government. Federal agencies are to take into account all viewpoints and objectives -- national, regional, state, and local -- in the formulation, planning and administration of programs and projects. The EPA and USDA ignored the mandates of the ICA.

• The Regulatory Flexibility Act mandates federal agencies to analyze proposed actions for significant impact on small entities and businesses. This never happened. Yet on Dec. 4, 1998, the EPA -- citing as its authority the Clean Water Action Plan -- issued a memorandum requiring states to complete Unified Watershed Assessments.

• The Clean Water Act applies to streams and stream segments, not watersheds, and the monitoring of water quality -- which the act mandates -- must be based on chemical, physical and biological data. There was no way that proper assessment could be completed in the time demanded EPA's December 1998 memo to the states to assess their watersheds -- even if the mandate were legal. In the words of the complaint, "Forcing states to list and categorize watersheds is an expansion of the EPA's authority under the Clean Water Act and is a violation of the Clean Water Act and the Administrative Procedures Act," and "Forcing states to list and categorize any water body without chemical, physical and biological data is a violation of the Clean Water Act, its implementing regulations and the Administrative Procedures Act.

Not even the threat of pending litigation caused Clinton to miss a beat. On May 29 in Yulee, Florida, he issued a memorandum to the secretaries of Interior and Agriculture the administrator of the EPA: Bruce Babbitt, Daniel Glickman and Carol Browner, respectively.

In doing so, he thumbed his nose at the Congress of the United States.

"The action plan was coupled with a challenge to the Congress to reauthorize and strengthen the Clean Water Act, but the Congress has yet to act on this challenge," the president complained.

"We must not wait for the Congress, however, before using our available resources and authority to further accelerate the effort to protect America's waters and the health and safety of the American public."

The memo is a laundry list of mandates, one of these being a directive to the departments of Interior and Agriculture to develop a unified federal policy for federal lands by increasing "protection of water on or near federal lands, and to identify waters on or near federal lands that require special protection."

"It's a new way of managing federal lands," said Bobbie Frank, adding she is not surprised by this recent move.

Nonetheless, Frank admitted to being "astounded" at the way Congress has given in to administration demands and the money being allocated to implement the action plan.

"It's amazing to me the amount of money that's going towards this, that's being allocated," she said. "Last year Congress voted $500 million. This year they're (the administration) asking for $650 million. I don't understand how come some congressman doesn't say, 'Wait a minute, wait a minute.' That's what to me is phenomenal. But they don't -- they keep right on voting for the funding. $650 million for this year alone -- and it's not even a law."

"So that's why we're suing. I guess it's up to us," said Frank.