By David Bowser

ALBUQUERQUE — A Cheyenne, Wyo., attorney plans this week to file a response to a government motion in U.S. District Court in Colorado. The case, she says, involves virtually all the land in the country — public and private alike — and Vice President Al Gore's clandestine scheme to regulate it.

Earlier this year, Karen Budd-Falen, a Cheyenne, Wyo., based attorney, and Bobbie Frank, who runs a soil conservation district in Wyoming, sued the federal government on behalf of the Association of Conservation Districts of Wyoming. Since then, 68 entities from 18 states have joined them in their suit over the Clean Water Action Plan.

The government responded to the suit by filing a motion to dismiss it, claiming that no one is being harmed by the Clean Water Action Plan.

"The Clean Water Action Plan is not about clean water," Budd-Falen says. "The Clean Water Action Plan is not about a good environment. The Clean Water Action Plan is not about self government and about people protecting their rights. The truth is the Clean Water Action Plan is about Al Gore being President of the United States."

The Clean Water Act, as differentiated from the Clean Water Action Plan, is very complicated, but it can be boiled down to four basic parts, the Wyoming lawyer says.

It deals with "point source" pollution and "nonpoint source" pollution. It forces states to create an "impaired stream" list, and it deals with wetlands.

"Point source pollution is something that comes out of the end of a pipe or a ditch or a defined place, so you know where the pollution is coming from," Budd-Falen says.

Lawsuits have been brought by radical environmentalists claiming that cows are a point source.

"I guess they were figuring that the intestines were sort of like a pipe," she speculates.

The activists claimed that the cow is a point source and ranchers should get a discharge permit from the state because they are point source polluting every time they put their cows on federal land.

A federal district court agreed, but the appeals court decided that a point source was exactly what it said it was in the act — a ditch or a pipe.

"It is not a cow," Budd-Falen insists.

Congress says in the Clean Water Act that no person can discharge any pollutant into waters of the United States from a point source without a permit.

"That's one of keys," Budd-Falen says. "It wasn't that Congress was going to stop people from discharging. They just wanted you to go get a permit from the Army Corps of Engineers."

When the act was passed in the 1960s, she says they were worried about dams being built across the Mississippi River so commerce couldn't travel from one state to another.

"That was originally the way 'water of the United States' was defined," Budd-Falen says. "It was water you could float a boat down which conveyed interstate commerce."

Unfortunately, she says, the courts got ahold of the term "navigable waters" and expanded the definition to include any river or stream that flows into "navigable waters." Then it became something that flowed into something that reached navigable waters. Then there was a court decision that says navigable water is something that might flow into something that might flow into something that might reach navigable waters some day.

"Some attorney came up with a joke that under today's standards, navigable water is anything that will float one page of a Supreme Court decision," Budd-Falen says, "and the water doesn't have to go anywhere."

Under the Clean Water Act, a person has to get a permit from the Army Corps of Engineers if he puts a shovelful of dirt into something that flows into something that flows into something that might reach a navigable water some day, Budd-Falen says.

"You could take out dirt from a navigable water under the original act, and the Army Corps of Engineers didn't have any say in it," Budd-Falen says.

But she says, that changed.

"That got changed because of a settlement in a court case between a bunch of environmentalists and the Army Corps of Engineers," Budd-Falen explains.

The activists sued the Army Corps of Engineers, claiming that every time a person puts a shovel in the ground and picks it up again, some dirt falls off the side. They argued that if dirt fell off the side of the shovel, that was placing material into a navigable water.

"In a court settlement that never saw the light of a judicial decision," Budd-Falen says, "the EPA agreed."

The Environmental Protection Agency wrote what is known as the Turlock Rule requiring people to get a permit not only to put dirt into navigable water but also to take dirt out of navigable water because some of the dirt may fall off the side of the shovel.

That rule was in place for about 15 years based on the court settlement before someone sued. The District of Columbia federal circuit court finally invalidated it.

But there is still a permitting process for point source pollution.

"It's a permit," Budd-Falen says. "The EPA is not supposed to stop you from filling your navigable water. You're just supposed to get a permit to do it."

The problem, she says, is that if a person goes to the EPA and says he needs to fill a wetland so he can build a house and the EPA says no, the person has no recourse. But that is changing. Recent court decisions say that person now has to be compensated for any loss of value because of actions by the federal government.

"The courts now say you have the opportunity to go to claims court and at least get compensation for the fact that the value of your property has been taken," Budd-Falen says. "That's required by the Fifth Amendment."

And there is the "impaired streams" list.

"Each state, every two years, is supposed to go out and assess all of the streams within the state and come up with a list of streams that are impaired or polluted," Budd-Falen says.

Almost every state has been sued by environmental activists claiming the states haven't done the impaired stream listing properly.

"Once a stream is listed as 'impaired,' that's when you go out and set the TMDL, the 'Total Maximum Daily Load,'" Budd-Falen says. "You're supposed to set TMDLs for each of the impaired stream segments."

"Interestingly enough, the act also requires that the segments be listed based on data," she says. "According to the act, it's based on biological, chemical and physical data. I'm going to tell you that is not what happens."

When the State of Wyoming was sued over its impaired stream list, the Association of Conservation Districts intervened because the state's stream list had about 350 streams on it.

"There's not a lot of water in Wyoming," Budd-Falen says. "Everybody pretty much knows where it is, so we couldn't figure out what the environmentalists wanted by adding more streams to the list."

They started going through the data that put the streams on the impaired stream list.

"We were shocked," Budd-Falen says. "Most of the data was somebody driving by in a pickup saying, 'Mmmm, that looks impaired to me.'"

There were streams on the list that weren't even located where the list said they were.

"The list is supposed to include latitude and longitude lines and physical legal descriptions of where these streams are," she says. "Half the streams weren't in the place the list said they were supposed to be."

Several of the streams were "impaired" by things that didn't even exist.

"They had a stream listed in the middle of Yellowstone National Park that they said was impaired because of agricultural practices," Budd-Falen says. "I'm going to tell you, there are no agricultural practices in Yellowstone National Park."

The conservation districts counter-sued the EPA for accepting streams on the list when there was no data indicating an impairment.

While the judge in the case deliberated the arguments, the conservation districts went to the state legislature and managed to pass a law that says a stream cannot be listed as impaired without biological, chemical and physical data.

"We mirrored the words of the Clean Water Act in that legislation," Budd-Falen says.

Based on that legislation, in one year, the number of Wyoming streams on the impaired stream list plummeted from more than 300 to 86.

Budd Falen says pushing the legislation through was fun.

"It was so cool to go to the Wyoming legislature and listen to a bunch of environmentalists argue why we should not have data to create impaired streams," she says. "It was hysterical."

Another one of the areas of concern for Budd-Falen is wetlands.

"You can read the Clean Water Act 200,000 times and you'll not find the word 'wetland' in the Clean Water Act anywhere," Budd-Falen says. "It doesn't exist."

However, she says, wetlands are governed by the Clean Water Act because of an executive order signed by Jimmy Carter. Under Executive Order 11990, federal agencies are supposed to do everything in their power to protect wetlands.

"Based on that executive order, the EPA, the Corps of Engineers and the NRCS have come up with what they call the "delineation manual," which is a manual which defines what a wetland is," Budd-Falen says.

According to the manual, a wetland is any land with surface or subsurface water for seven days a year and riparian-dependent vegetation.

"The courts, though, are now starting to get tired of this," Budd-Falen says. "So we're finally starting to see court decisions telling the EPA that they no longer have the kind of jurisdiction they think they have over isolated wetlands."

The courts are split, she admits, but the Fourth U.S. Circuit now says if the water in the wetlands does not run into a stream or drain into an underground aquifer, the EPA has no jurisdiction, and the landowner does not have to get a permit to fill it.

"Those are 1997 and 1998 cases where the court is finally starting to say the Clean Water Act was meant for navigable water, not somebody's wet spot in the middle of their meadow," Budd-Falen says.

After the first case came out, EPA's response was to write a regulation in an effort to get around the court order.

"EPA's regulation is now that, 'yes, we admit that the court ruled against us, and we don't have jurisdiction over isolated wetlands,'" Budd-Falen says. "'However, if a migratory bird lands on your wetland, we're going to consider that interstate commerce, and we're going to claim jurisdiction over the wetland anyway.'"

That regulation has been challenged.

The other part of the Clean Water Act deals with "nonpoint source" pollution.

"The most important thing to remember about nonpoint source pollution is that there are no mandatory requirements for nonpoint source pollution in the Clean Water Act," Budd Falen says. "It's all voluntary."

Nonpoint source pollution is pollution with no definitive source. It comes from a field, and it's so spread out that no one can point to a source and say this is where it comes from. It's just there.

"It's background," she says. "I don't care if you eliminate every cow and every human within 2000 miles, you're still going to have pollution because it's natural. It's there."

The Clean Water Act encourages "best management practices," but it's voluntary.

"If you are the cause of nonpoint source pollution, they cannot fine you, and you're not going to jail," Budd-Falen says.

But the Clean Water Act is not the same as the Clean Water Action Plan. The Clean Water Act was passed by Congress following a public debate and signed into law by the president.

The Clean Water Action Plan was created at the direction of Vice President Al Gore. On Oct. 18, 1997, Gore issued a directive to create a plan to clean up America's water.

On Nov. 10, 1997, the administration published a letter, a notice of intent to publish the plan in the Federal Register.

"It was two pages," Budd-Falen says. "It was just a little notice that said, 'We're going to develop a clean water action plan to further implement the Clean Water Act to clean up all this dirty water.'"

On Feb. 14, the plan was released.

"There was no public notice," Budd-Falen says. "No public comment. No rulemaking. No nothing. The EPA just dropped this plan and said here it is."

The plan contains 111 "key actions."

"Those are their words, not mine," Budd-Falen says.

The BLM and Forest Service now have to go through a National Environmental Policy Act process to renew grazing permits and leases because of the Clean Water Action Plan.

The Clean Water Action Plan now ties clean air standards to clean water standards.

"That's one of the key actions of the Clean Water Action Plan," Budd-Falen says.

Another one of the key actions is unified watershed assessments.

"Under the Clean Water Action Plan, every state in the nation is required to categorize, not streams like it says in the Clean Water Act, but whole watersheds into one of four categories," Budd-Falen says.

Category one watersheds are ones that need restoration. Category two watersheds are ones that are meeting their goals, but need some additional action. Category three watershed are in fairly good shape. Category four watersheds are pristine.

There is another category for watersheds with insufficient data.

Every state in the nation was issued two memoranda by EPA saying they would assess every watershed in the state and categorize the watersheds, Budd-Falen says. The states were given 30 days to accomplish this project.

The directions for unified water assessment were issued in a draft form, Budd-Falen says, and comments were requested, but only comments from federal and state agencies were received.

"The agencies had exactly seven days to provide input on the categorization and the requirement for creating watersheds," Budd-Falen says. "Now, they mailed this stuff from Washington, D.C."

The State of Wyoming didn't get their notice to comment until 10 days later.

"We got our request for comments three days after the comment period closed," Budd-Falen says. "None of this was released to the public."

The only legal authority cited in the memoranda requiring the unified watershed assessment is the impaired stream list and the Clean Water Action Plan.

"Based on those two documents, every state in the nation has 30 days to categorize watersheds," Budd-Falen says. "I am very proud to say that every state except for the State of Wyoming did it."

Because Wyoming refused to categorize its watersheds based on their objection that there wasn't enough time, the EPA is withholding $600,000 in funding for water restoration in the state.

Once the EPA got the watershed information, it published a map on the Internet, at www.cleanwater.gov.

"You will find a map with a little white square in it where Wyoming is because we wouldn't play the game that shows every impaired watershed in every state in the nation," Budd-Falen says. "You can click on a state and get down to the county level. You can keep clicking and keep clicking and actually find out who is the landowner in the impaired watersheds."

The EPA then issued a notice saying these are impaired watersheds and that they think the public needs to be watchdogs over these watersheds. None of the landowners were ever notified.

Budd-Falen stresses that these watersheds were assessed in 30 days.

"I will guarantee you there's not a shred of data that shows your watershed is or is not impaired," she says. "There simply wasn't the time."

Questions facing livestock producers and cattle feeders are coming out of the Clean Water Action Plan as well, Budd-Falen says.

"I disagree with the AFO and CAFO plans as much as anyone else," she says of federal rules governing "animal feeding" and "confined animal feeding" operations, "but the thing that really infuriates me is what they're not telling you about AFOs and CAFOs.

"What they're not telling you is that the EPA's decision has been to tie AFOs and CAFOs to unified watershed assessments."

In her legal research on the Clean Water Action Plan, she came across a letter the EPA had written to a congressman.

"What the letter said was that the EPA agreed that if you were an AFO, you don't have to get a permit from the EPA," Budd-Falen says. "A CAFO does. But what they're not telling you and what they said in this letter to a congressman is that EPA can determine that if you are an AFO in an impaired watershed and you are a significant contributor to pollution, that even if you are not a CAFO, the EPA is going to require you to get a permit to operate."

She says this holds great potential for impact in the West where watersheds are large.

"What the EPA says is that it can take every single operation in that watershed," Budd-Falen says, "and if they determine it to be 'significant' — and of course, they don't define 'significant' — they can add your operation and your neighbor's operation and their neighbor's operation, and if all of you together cause nonpoint source pollution, they'll require each and every one of you to get a permit even if you've only got two cows in a corral next to the creek and your neighbor has three head."

The letter states, "It is the EPA view that it may find each of many individual animal feeding operations to be a significant contributor of pollution based on the cumulative impact of these facilities in an impaired watershed even if each one itself contributes only a minor amount of pollution."

"You're not going to find that language in any of the documents relating to unified watershed assessments," Budd-Falen stresses. "You're not going to find that language in any of the rulemaking proposed for AFOs and CAFOs, but that is the EPA's view of what's going to happen if it can get AFO and CAFO regulations through."

The Clean Water Action Plan is also going to require clean water standards, Budd-Falen says.

"These are going to be nationwide standards, not based on individual needs and individual areas," she insists.

The EPA through the Clean Water Action Plan is going to acquire regulatory authority to control nonpoint source pollution, she predicts.

Under the Clean Water Act, nonpoint source pollution action was voluntary, but the Clean Water Action Plan came up with new term called "polluted runoff." Under the Clean Water Action Plan, the EPA can use its point source regulatory authority for polluted runoff.

The Clean Water Action Plan defines polluted runoff as nonpoint source pollution.

"The EPA is going to be able to take regulatory authority over point source pollution and apply it to polluted runoff, nonpoint source pollution," Budd-Falen says. "They did it in an action plan that was never released to the public for review."

Among the standards being set by the EPA, there is no baseline so no one knows if they can meet the standards because no one knows what the backgrounds are.

The Clean Water Action Plan also says grazing adjustments will be created to restore riparian and upland range.

"You tell me the last time you got an upward adjustment to protect riparian areas," Budd-Falen says. "We all know what that means."

The Clean Water Action Plan says the BLM, Forest Service and NRCS are to aggressively implement management changes.

"I don't know what that means, but it doesn't sound good to me," Budd-Falen continues.

The Clean Water Action Plan also says the Forest Service is mandated to decommission or obliterate five million miles of roads per year through the year 2002.

The plan gives the Army Corps of Engineers new authority that they've never had before to acquire land and easements. There is authorization for growth management and federal zoning.

Budd-Falen says that after the Association of Conservation Districts researched the plan, they issued a notice of intent to the EPA, to tell them they disagreed with the plan and they were going to sue.

"I've got to tell you I have issued a lot of notices of intent," Budd-Falen says. "I've been doing this for 15 years. This is the first one that anyone ever responded to, and the response came from a gentleman who is legal counsel for Al Gore."

The Gore lawyer came out to Wyoming, and he sat down to meet with Budd-Falen and the association.

"He said this is just Wyoming," Budd-Falen recounts. "He said everybody else loves this. We're going to clean up America. I don't see why Wyoming is so recalcitrant, and we want to deal with you. We want to cut a deal and the deal we want to cut is this: we'll just make your watersheds smaller so when you do your unified watershed assessments, you only have to make small watersheds, not big watersheds. We said 'forget it, buddy.'"

Budd-Falen says Al Gore's staff called the Wyoming governor and asked him what he was going to do about the situation.

"Although I don't always agree with the governor, I was pretty proud of him," Budd-Falen says. "He said, number one, these are private citizens, and they can sue whomever they want.

"Number two, he told them what he thought of the Clean Water Action Plan in rather blunt terms.

"We did actually sue the EPA, the Forest Service, the BLM, the Army Corps of Engineers, all the federal agencies," Budd-Falen says. "I was dying to figure out how to put Al Gore's name on that caption, but I couldn't do it."

When they decided to sue, they contacted other groups to see if it was just Wyoming that was upset with the Clean Water Action Plan. To date, 68 plaintiffs have joined them in the suit from 18 states.

"One of the most exciting things is, we've got states from the Southeast involved," she says. "There has been a war on the West for a long time. It's really exciting to have people from Tennessee and Arkansas and Florida calling and saying, 'This is really bad. They're going to take our property rights.'

"We've been telling them this for years."