Bureaucratic Boundaries vs. Clean Water: a Reply to Clifford J. Villa, by Michael C. Blumm * & William Warnock **.

Dear Editorial Staff,

For Professor Blumm, one of the pleasures of being in the academy is that you are critiqued by your students and, in this case, a former able student who now is a fine attorney. (1) But we are afraid Cliff Villa has been away from law school--and in the real world--for too long. In his real world, agency turf and the unitary executive are all too real and confining. They make it understandable why the United States Environmental Protection Agency (EPA) could not be properly blamed for allowing the United States Forest Service (Forest Service) to maintain that cows in streams were not a Clean Water Act (CWA) (2) problem. In the compartmentalized real world of bureaucratic thought, the Forest Service had jurisdiction over the lands and the apparent authority to claim that cow-damaged streams were not subject to state certification requirements, and were therefore immune from water quality standard constraints. That claim was ratified by the Ninth Circuit as not being completely irrational. (3)

Don't blame EPA for this result, Mr. Villa says. The agency had no jurisdiction over the issue. This is a perspective that elevates agency turf over clean water and undermines the national policy of preserving and restoring the biological, chemical, and physical integrity of waterbodies. (4) Even if it were relevant to the "cows in the creek" case, the unitary executive is a policy of convenience, not a constitutional or statutory requirement. An EPA that took seriously its role as the administrator of the Clean Water Act (5) would not allow a sister federal agency to effectively undermine state water quality standards (which EPA had approved) (6) to serve the interests of agency turf.

The fact that the Deputy EPA Administrator was aware of the Forest Service's interpretation of the Clean Water Act and had argued against it (7) attests to the significance of federal land management actions that degrade water quality and interfere with the attainment of water quality standards. Had the Deputy been the EPA Administrator, there would have been an available administrative mechanism to ventilate the issue instead of allowing the Forest Service interpretation to become the government's position. Under section 309 of the Clean Air Act, (8) EPA may review and comment on the environmental effects of "any matter relating to [EPA's] duties and responsibilities" under any provision of federal law, (9) including the Clean Water Act. If EPA determines that a proposed federal action is unsatisfactory from the standpoint of environmental quality, it may refer the matter to the Council on Environmental Quality, (10) which may hold hearings, conduct interagency negotiations, and publish findings and recommendations. (11) In this manner, the government's position concerning "cows in the creek" could have been the product of thoughtful interagency deliberation, instead of "a post hoe rationalization by an agency counsel" in litigation. (12)

In a larger sense, all three of the case studies featured in our article were about bureaucratic boundaries conflicting with effective clean water regulation. In the "dams aren't point sources" case, EPA deferred to the position of its sister agencies, the U.S. Army Corps of Engineers and the Bureau of Reclamation, which wanted to avoid Clean Water Act permit Requirements. (13) In the "nonpoint sources aren't subject to nondegradation requirements" case, EPA drew an artificial and, in our view, wholly unnecessary line between state and federal clean water regulation. (14) And, of course, EPA chose to favor Forest Service turf over state water quality certification in the "cows in the creek" case. (15) In each case, the agency ignored the call for a comprehensive and integrated approach to pollution control that led to the agency's founding in 1970 and to the enactment of the modern Clean Water Act two years later. (16)

An apparent victim of the same bureaucratic myopia displayed by EPA in these three case studies, Mr. Villa refuses to acknowledge EPA's failures to interpret the CWA in a way that would achieve the statute's objectives. (17) The purpose of our article was to contrast EPA's statutory interpretations over the last 30 years with the objectives of the 1972 statute. (18) In so doing, we admonished EPA to get serious about reducing nonpoint source pollution. (19) Yet in his reply, Mr. Villa asserts that our effort to illuminate EPA's mistakes will impede the agency from achieving the CWA's clean water goals. (20) We disagree. Denying that the agency has an important role in regulating the primary source of water pollution is hardly a way to meet the goals of the statute.

Mr. Villa faults our article because we criticize EPA's unwillingness to assume a more vigilant oversight role concerning nonpoint source pollution, (21) a role we believe is authorized by the CWA. Yet, paradoxically, he invokes Aldo Leopold, Rachel Carson, and Edward Abbey (22)--visionaries who exposed earlier shortcomings of federal environmental protection efforts, as we sought to do. Mr. Villa also equates our suggestion that EPA interpret the CWA to achieve the Act's objectives to wishing for a "superhero" (23)--a "Clean Water Crusader." (24) In fact, we think all that is necessary is an administrator who genuinely values clean water over administrative convenience and agency turf battles. While these latter concerns may be of value inside the beltway, they are serious impediments to reducing the nation's polluted runoff, which today is the chief source of water pollution.

A successful former student like Mr. Villa certainly understands a primary lesson of administrative law--that courts defer to an administering agency's reasonable interpretation of a statute where that statute is silent or ambiguous. (25) Thus, if EPA had interpreted the CWA to allow effective federal regulation of nonpoint source pollution, the courts would have no doubt endorsed that interpretation. (26) We submit that 30 years down the road chosen by EPA--a road with virtually no federal responsibility for polluted runoff--it is past time for the agency to recognize that it must accept an active role in regulating nonpoint sources in order to reduce the nation's predominant source of water pollution.

In law school we teach our students to make factual and legal distinctions, and good students like Cliff Villa are able to do so adeptly. We are afraid, however, that the senior author may be faulted for failing to teach that in making such distinctions, one must not lose sight of the forest for the trees.

(1) See Clifford J. Villa, The Road Taken." A Reflection on Michael C. Blumm & William Warnock's Roads Not Taken: EPA vs. Clean Water, 34 ENVTL. L. 809, 809, 811 & n.17 (2004).

(2) Federal Water Pollution Control Act, 33 U.S.C. [subsection] 1251-1387 (2000).

(3) Or. Natural Desert Ass'n v. Dombeck, 172 F.3d 1092, 1099 (9th Cir. 1998), rev'g Or. Natural Desert Ass'n v. Thomas, 940 F. Supp. 1534 (D. Or. 1996), discussed in Michael C. Blumm & William Warnock, Roads Not Taken: EPA vs. Clean Water, 32 ENVTL. L. 79, 94-90 (2003).

(4) 33 U.S.C. [section] 1251(a) (2000).

(5) Id. [section] 1251(d). Interestingly, the district court was quite aware of EPA's responsibility for administering the statute, refusing to accord the Forest Service's interpretation judicial deference because the court pointed out that EPA was the primary administrative interpreter of the statute. Or. Natural Desert Ass'n, 940 F. Supp. at 1540.

(6) See 33 U.S.C. [section] 1313(c)(3)-(4) (2000) (directing EPA to review and approve state water quality standards and to promulgate standards when proposed state standards are deficient).

(7) Blumm & Warnock, supra note 3, at 95 n.97.

(8) 42 U.S.C. [subsection] 7401-7671q (2000).

(9) Id. [section] 7609(a).

(10) Id. [section] 7609(b).

(11) 40 C.F.R. [section] 1504.3(f) (2003).

(12) Or. Natural Desert Ass'n v. Thomas, 940 F. Supp. 1534, 1540 (D. Or. 1996).

(13) Nat'l Wildlife Fed'n v. Gorsuch, 530 F. Supp. 1291 (D.D.C. 1982), rev'd, 693 F.2d 156 (D.C. Cir. 1982), discussed in Blumm & Warnock, supra note 3, at 83-91.

(14) Am. Wildlands v. Browner, 94 F. Supp. 2d 1150, aff'd, 260 F.3d 1192 (10th Cir. 2001), discussed in Blumm & Warnock, supra note 3, at 104-09.

(15) See supra note 3 and accompanying text.

(16) See Blumm & Warnock, supra note 3, at 110.

(17) Villa, supra note 1, at 814.

(18) See 33 U.S.C. [section] 1251(a) (2000) (establishing the purpose of the CWA to be the "[r]estoration and maintenance of [the] chemical, physical[,] and biological integrity of U.S. waters").

(19) See Blumm & Warnock, supra note 3, at 82-83, 110-12.

(20) See Villa, supra note 1, at 814 ("Dwelling on [EPA's CWA interpretations] may only ... make us miss the opportunities still ahead for continuing the pursuit of clean water.").

(21) Id. at 809-11, 814.

(22) Id. at 814.

(23) Id. at 811.

(24) Id. at 812.

(25) See Chevron, USA, Inc. v. Natural Resources Def. Council, 467 U.S. 837, 865 (1984) ("When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail.").

(26) See Blumm & Warnock, supra note 3, at 83.

* [c] Michael C. Blumm, 2004. Professor of Law, Lewis & Clark Law School.

** [c] William Warnock, 2004. Clerk to Hon. David Stewart, Alaska Court of Appeals; J.D. 2003, Lewis & Clark Law School.

Sincerely,

Michael C. Blumm

William Warnock