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

• Author: Blumm, Michael C.

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...