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.
