Secretive Water Action Plan
Facing Court Challenge Soon

By David Bowser

CHEYENNE, Wyoming — "The Clean Water Action Plan initiated by Vice President Albert Gore, Jr., represents one of the single greatest threats to private property ownership, federal land management and water rights use in this nation," says Karen Budd-Falen.

The Wyoming attorney has been retained by the Wyoming Association of Conservation Districts, an organization of 34 conservation districts in the state, to sue the Environmental Protection Agency, U.S. Department of Agriculture and other federal agencies involved with the Clean Water Action Plan. The Cheyenne-based attorney says others may be joining as plaintiffs in the case.

Budd-Falen says that without any opportunity for public participation and without notice to Congress, the plan was proposed by Carol Browner of the EPA and Dan Glickman of USDA to Vice President Gore, who approved it Feb. 14, 1998.

"The stated purpose of the CWAP," Budd-Falen says, "is to chart a course toward fulfilling the original goal of the Clean Water Act."

The result, she says, is a wholesale change in federal, state and private management of water and land.

The Wyoming Association of Conservation Districts, under state law, is charged with developing and implementing comprehensive plans for prevention and control measures for nonpoint source pollution and other water and land-related issues including engineering operations, range management, methods of cultivation and other erosion control and flood prevention programs.

Although the EPA and USDA issued a Notice of Intent in the Nov. 10, 1997, Federal Register to develop the plan, it was not subjected to the rulemaking requirements of the Administrative Procedures Act, the public comment requirements of the National Environmental Policy Act, nor the state and local government cooperation requirements of the Intergovernmental Cooperation Act.

"The CWAP exponentially expands the EPA's authority under the Clean Water Act and the EPA's control over the Bureau of Land Management and Forest Service lands," Budd-Falen says.

She insists there are significant statutory violations, and the plan will have a devastating effect on private property rights and ownership. The plan cites virtually no scientific, economic, political or sociological evidence to support its mandates, she insists.

Budd-Falen says the plan expands EPA's jurisdiction under the Clean Water Act.

Based on the Clean Water Action Plan, EPA issued a memorandum on May 13, 1998, requiring states to complete Unified Watershed Assessments to determine the health of each watershed in each state.

"The memorandum does not cite any statutory authority for the implementation of the UWAs," Budd-Falen points out.

The program was not made available for public comment and was given only a seven day review period by state and federal agencies, she says. Wyoming did not receive its draft and request for comment until after the seven day period expired.

Under the Unified Watershed Assessments, each state was to assess and categorize watersheds by Oct. 1, 1998.

Wyoming refused to do so because of the short time given to complete the project. Because of the state's refusal to assess and categorize its watersheds, EPA is withholding about $900,000 in funding that would primarily be used by the conservation districts for steam restoration projects.

Budd-Falen also charges that the CWAP redefines nonpoint source pollution as polluted runoff. By redefining nonpoint source pollution as polluted runoff, she says, the EPA can regulate nonpoint source pollution in the same manner it regulates point source pollution.

The plan also modifies federal wetland policy, she adds.

"The goal of the CWAP is to achieve a net increase of 100,000 acres of wetlands per year by the year 2005," Budd-Falen says.

To do this the plan mandates expansion of existing wetland programs and creates new ones.

The plan also contains a National Strategy for Animal Feeding Operations.

According to the EPA and USDA, Budd-Falen says, an animal feeding operation is a facility where animals have been, are or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12 month period and crops, vegetation, forage, growth or post-harvest residues are not sustained in the normal growing season. A confined feeding operation is defined as a facility with 300 animal units.

"Although the AFO strategy was released for public comment, what the draft regulations failed to disclose to the public," Budd-Falen says, "is that the AFO and CAFO strategy will be directly tied to the Unified Watershed Assessment."

She cites a letter from EPA to Congressman Bud Schuster, chairman of the Committee on Transportation and Infrastructure, dated Oct. 21, 1998.

The letter says EPA regulations state that designating an AFO as a CAFO requires a finding that it is a significant contributor of pollution. The regulations, however, leave open what is to be considered significant. The EPA has broad discretion to interpret this term.

"It is the EPA's view that it may find each of many individual animal feeding operations to be significant contributors of pollution based upon the cumulative impacts of these facilities in an impaired watershed, even if each one itself contributes only a minor amount to the pollution," the letter states. "This is a reasonable reading of the regulations: the combined impacts of a groups of CAFOs in an impaired watershed, however small individually, may in fact be of as much or more concern than the impacts from a single large discharger."

"In other words, without disclosing it to the public, it is the EPA's position that in impaired category watersheds, the EPA can combine individual AFOs throughout an entire watershed into a CAFO," Budd-Falen says. "Once these units are designated as a CAFO, the EPA can require a permit for each individual operation."

The Clean Water Action Plan also calls for the establishment of two million acres of conservation buffers on private agricultural lands, Budd-Falen says. Four million acres of the Conservation Reserve Program will be used for conservation buffers.

These buffer zones, she continues, will mostly be established within riparian areas adjacent to streams. Because the vast majority of the land is privately owned, conservation buffer zones will impact private land ownership and use, she says.

"Although the stated goals of the CWAP are laudable," Budd-Falen says, "many of those goals have little if anything to do with implementation of the Clean Water Act and everything to do with the regulation of private property."

She says the plan has 111 key actions affecting all federal agencies, state and local governments and private land and water rights owners. The plan governs everything from forest road closures to requiring additional procedures for BLM livestock grazing permit renewals to governing air emissions, she says.

Budd-Falen says she expects to file suit this week. Late last week, they were surveying various agricultural producers and related interests to see if anyone else planned to join as a plaintiff in the suit.

The suit is being funded by the Alamogordo, N.M.,-based Paragon Foundation.

A spokesman for the foundation says donations are being solicited to help fund this and other litigation. Funds sent to the Paragon Foundation will be matched with additional foundation funding.