The Waters of the United States Rule, Congress, and

by Dave Owen

May 26, 2015

Perhaps as soon as this week, according to media reports, the Army Corps of Engineers and EPA will release a final "Waters of the United States" rule clarifying the scope of federal regulatory jurisdiction under the Clean Water Act.  Simultaneously, Congress is considering multiple bills that would block the new rule and undo portions of the Clean Water Act.  There are many reasons for the opposition, but one key argument is grounded in federalism.  According to the Wyoming Senator John Barrasso, chief author of the Senate bill (as quoted in Saturday’s New York Times):

"This rule is not designed to protect the traditional waters of the United States.  It is designed to expand the power of Washington bureaucrats."

This is a familiar refrain.  Politicians say similar things to oppose all sorts of governmental initiatives, ranging from the Common Core educational standards to the Affordable Care Act.  On environmental issues, this kind of rhetoric is particularly prevalent.  And in this circumstance--and, I suspect, many others--it's just not true.

For a recent paper (forthcoming in the UCLA Law Review), I spent many hours researching the practices and bureaucratic organization of the Army Corps, the agency with primary responsibility for implementing section 404 of the Clean Water Act (the section 404 permitting program, which governs the filling of "waters of the United States," is the regulatory program likely to be most impacted by the rule).  The findings of that research are very difficult to reconcile with the claim that this rule would just empower bureaucrats in Washington.  For example:

Of the 1,200 to 1,300 Army Corps staff in the agency's regulatory program, ten are based in Washington D.C.  Of those ten, two are on rotation from an office elsewhere in the country.  The rest of the regulatory program staff are based in division, district, and field offices across the nation.  And that's where the real power lies.  As one of the few headquarters staffers explained to me, district commanders "“are the ones who make the decision, and we reinforce that every chance we get.”

Many of those non-DC staff were born and raised in the areas where they presently work.  Others have moved around, but staff told me that having some staff with roots in the areas where they work did matter.  As one said, "you know the culture, you were raised here and know the challenges people are having and you want to help them as much as you can." 

Even most of the DC staff have extensive field experience.  As one district chief explained to me:

"Over the years, the people who have gotten in managerial positions have gotten there through the ranks.  So… they know the real world, and that is even consistent with the people in headquarters.  Most of those people have come from the district offices [and] were at one point a project manager processing permit applications."

That geographic distribution of personnel matters to the implementation of the program.  It lets non-DC staff tailor the program to local environmental conditions.  It enables extensive communication and coordination with state agencies.  And it allows for extensive, often face-to-face contact with the people who are regulated by, and who benefit from, the program.  The DC office isn't irrelevant, of course, and Corps staff repeatedly told me about efforts to ensure consistency across the nation.  But I do not think anyone who takes a close look at the program could say, with a straight face, that this new rule is just about empowering Washington bureaucrats.

And therein lies the larger motivation for the research project.  Senator Barrasso is hardly alone in equating federal law with Washington DC bureaucracy.  Other politicians say similar things all the time, as do legal academics.  And while Senator Barrasso is unlikely to abandon a resonant political line just because it rests on dubious factual premises, those of us who profess to speak accurately ought to be more careful.  In some federal programs, Washington bureaucrats play dominating roles, and in a few, all the bureaucrats really are in Washington.  But in many contexts, federal offices spread across the country really do matter, and we ought to pay attention to what they do.  The waters of the United States controversy is just one of many in which that attention would be well justified.

Cross-posted on the Environmental Law Professors Blog.

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Also from Dave Owen

Dave Owen is a Professor of Law at the University of California, Hastings, College of the Law.

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