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Private Property Cut the CWAP Al Gore’s 'Clean Water Action Plan' by Karen Budd-Falen
It is called the Clean Water Action Plan (CWAP) and it is one of the single greatest attacks ever made on private property ownership and water rights use in America. On Valentine’s Day last year, fulfilling a directive issued five months earlier by Vice President Al Gore, Carol Browner of the Environmental Protection Agency and Dan Glickman of the Department of Agriculture announced they had completed the CWAP. The "action plan"—put together in violation of federal statutes that require opportunity for public comment—exponentially expands the EPA’s authority and control over Western lands administered by the Bureau of Land Management and U.S. Forest Service. Brazenly Illegal If allowed to stand the CWAP—full of illegitimate orders to not only federal agencies but even state and local governments—would dictate wholesale changes in federal, state and private management of water and land. Never remotely authorized by Congress, the Gore plan is brazenly illegal. Consequently, last month, the Wyoming Association of Conservation Districts (WACD), joined by numerous other groups from across the nation, filed suit against both the Environmental Protection Agency and the U.S. Department of Agriculture (USDA). The purpose the Clinton administration has claimed for the CWAP is charting "a course toward fulfilling the original goal of the Clean Water Act—‘fishable and swimmable’ waters for all Americans." But the CWAP is full of what it calls "key actions" that affect federal agencies and state and local governments all across the country. These are officious mandates that dictate everything from Forest Service road closures, to additional procedures for Bureau of Land Management (BLM) livestock grazing permit renewals, to rules on air emissions. Although the EPA and USDA published a notice of intent to develop the plan in the Federal Register in November 1997, the administration, in producing its CWAP, failed to follow numerous existing federal laws. Violated were the rulemaking requirements under several federal laws, including those that require the American public to be allowed to review a draft version of the plan or to comment on any parts of it before the CWAP was adopted and implemented. Violating NEPAThe National Environmental Policy Act (NEPA) commands all agencies of the federal government to complete an environmental impact statement (EIS) or an environmental assessment (EA) for "every recommendation or report on proposals for legislation and other major federal actions significantly affecting the quality of the human environment." Under existing NEPA regulations "major federal action" is described as "adoption of formal plans, such as official documents prepared or approved by federal agencies which guide or prescribe alternative uses of federal resources, on which future agency actions will be based." So NEPA clearly applies to the CWAP. Overall, the Gore-Browner-Glickman plan contains 111 "key actions" which are to "guide or prescribe alternative uses of federal resources, upon which future agency actions will be based." For example, one key action directs the Department of the Interior and the Department of Agriculture to "develop a Unified Federal Policy to enhance watershed management for the protection of water quality and health of aquatic ecosystems on federal lands." Another key action mandates the Forest Service to (1) "decommission or obliterate 5,000 miles [of roads] by the year 2002," (2) place a "temporary moratorium on new road construction in roadless areas greater than 5,000 acres" and (3) "publish new forest transportation regulations." And another key action requires the EPA, the BLM and the Forest Service to "implement a strategy ... in watershed-based assessments and actions where urban-rural interactions threaten forest health and water quality." These are just a few of the hundreds of actions mandated by the CWAP. Because each key action "prescribe[s] uses of federal resources upon which future agency actions will be based," NEPA compliance is mandated. Additionally, NEPA documentation is required to show "cumulative impacts" and "connected actions." A cumulative impact "[I]s the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time." Cumulative impacts also consider the direct and indirect "effects" of an action, even those which may have both beneficial and detrimental effects. Preparing an individual NEPA document for each key action cannot describe the cumulative impacts, and direct and indirect effects of all the activities directed under the CWAP. Thus, it is imperative that the EPA and USDA consider the total impact of all key actions on the "human environment." Even if NEPA were applied to the individual key actions (which it is not), the NEPA process would be frustrated. The majority of the key actions are mandatory, not discretionary in nature. As mandatory actions, there is nothing left to the decision-making authority of the agencies, rendering a consideration of the environment useless. Consider for example, the key action that orders the Forest Service to decommission or obliterate 5,000 miles of roads by the year 2002 and shall place a "temporary moratorium on new road construction in roadless areas greater than 5,000 acres." On February 11 of this year the Department of Agriculture announced its compliance with this key action. Although the Forest Service pretended to comply with NEPA in issuing its new policy, such compliance is a sham. The reason? The road policy was mandated in the CWAP. Clearly, if the entire effects of CWAP’s mandatory actions on the environment are to be assessed, NEPA compliance is necessary. Violating ICA Another act violated by the EPA and USDA is the Intergovernmental Cooperation Act (ICA). The purpose of the ICA is to "strengthen [s]tate and local government and improve relations between those governments and the" federal government through closer cooperation and coordination of policies and activities. The ICA provides that federal agencies, to the extent possible, take into account all viewpoints and objectives—national, regional, state and local—in the formulation, planning and administration of programs and development projects. Additionally, the ICA stipulates that insofar as possible, federal planning shall be coordinated with and made part of local and area wide development planning. As with NEPA, the EPA and USDA have ignored the mandates of the ICA. No local government received notification of the CWAP, nor were they contacted to solicit their input and to attempt to coordinate the CWAP with their local programs. Since conservation district members across the West have jurisdiction over local watershed protection programs, these government panels should have been contacted first to determine if there was even a need for the CWAP. Violating RFA The CWAP also violates the Regulatory Flexibility Act (RFA). Under the RFA, all agencies of the federal government are to analyze their proposed actions for any significant impact on small entities and businesses. This never occurred. However, based on the CWAP, on December 4, 1998, the EPA issued a memorandum requiring states to complete Unified Watershed Assessments (UWAs) gauging the health of each watershed within each state. The memorandum does not cite any statutory authority for the implementation of UWA. Rather the only authority cited is another memorandum dated June 9, 1998 entitled "Clean Water Action Plan—Unified Watershed Assessment Framework." The June 9, 1998 memorandum cites as its authority the Clean Water Action Plan. This memo also gave states only until October 1, 1998 to complete these new assessments and schedule priorities. It then mandates that states develop "Watershed Restoration Action Strategies" for those watersheds not meeting the goals of the program. Once a state identifies watersheds "not meeting, or facing immediate threat of not meeting, clean water or other natural resource goals," a legal description and map of those areas are placed on the Internet, without consent or even notification to the landowners. Even more alarming is that the EPA is now withholding "§ 319 funds" appropriated by Congress from those states failing to comply with the EPA’s order. Currently the only state failing to comply has been Wyoming. Violating UMA The CWAP also violates the Unfunded Mandates Act (UMA). That act states that each agency shall, unless otherwise prohibited by law, assess the effects of federal regulatory actions on state, local and tribal governments, as well as the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law). None of these mandates have been met by the CWAP. Rather the plan simply assigns key actions to units of government without consideration of the effects on those units of government. For example, no money was appropriated to the states to complete their UWAs, even though the president’s budget for Fiscal Year 1999 proposes $568 million to implement the CWAP. Even more egregious, the EPA is withholding § 319 funds from states failing to submit UWAs. These activities cannot withstand judicial scrutiny. Violates Takings Clause Finally, the CWAP clearly affects private property, mandating consideration of the Fifth Amendment of the U.S. Constitution. Yet in this case, there has been no consideration by the USDA or EPA that the CWAP might result in the taking of private property, private property rights or investment-backed expectations. For example, two of the key actions mandate that the USDA will establish by the year 2002 "two million miles of conservation buffers" and will "reserve four million acres from the Conservation Reserve program for the establishment of conservation buffers." There is simply no way to implement these key actions without impacting private property. Thus, the EPA and USDA should complete a takings implication assessment pursuant to E.O. 12,630, analyzing the impacts of the CWAP on private property, on private property rights and on investment-backed expectations. The CWAP affects all Americans, states and local governments. The so-called Clean Water Action Plan is not about clean water. Rather, it is a poorly disguised attempt by the bureaucracy to take land and water from the citizens of this nation. The Wyoming Association of Conservation Districts is standing up to this scheme in court. We would appreciate all the support Westerners and others can muster. NJ Karen Budd-Falen is one of America’s top-tier federal lands and resource lawyers. She lives in Cheyenne, Wyoming.
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t is not about clean water; it is about control of all water. It is not about
setting goals for states; it is about making decisions in Washington, D.C. then applying
them to the whole country regardless of the individual circumstances. It is not about
Congress passing laws; it is about a bureaucracy that thinks it is above the law. 