Author: Reed Hopper
One has to confess a sort of perverse admiration for the federal government’s unending expansion of power under the Clean Water Act. The recent Draft Guidance on Identifying Waters Protected by the Clean Water Act, by the Corps of Engineers and the EPA, that authorizes federal regulation of virtually any wet spot in the country, is a model for "growing" Big Government:
Lesson 1–Hoodwink the People
You must create the illusion of a crisis that can only be solved by federal action. As a federal agency, you must remember the power of fear. For example, to sell the expansive new "guidance" on the Clean Water Act, you must claim that federal regulation is absolutely vital to safeguard millions of acres of wetlands and thousands of miles of streams threatened by development and pollution. But because ecological disaster is abstract, you must find a way to make the need for intrusive federal intervention personal. Implying that without federal action millions of people will no longer have safe drinking water fits the bill perfectly. This is what you must do to justify federal control of local land and water use. But what you must never do is let the People know that other federal, state and local laws cover water resources not regulated by the Clean Water Act, especially drinking water.
Lesson 2–Distort the Intent of Congress
The best indicator of congressional intent is, of course, the language Congress used in the Act. But don’t let this stop you from bending the Act to your own will. Congress may have expressly stated that the object of the Clean Water Act is to eliminate "the discharge of pollutants into the navigable waters" and that the States have the "primary responsibilities and rights … to prevent … pollution" of local waters, but if you boldly declare Congress intended the Corps and EPA to regulate nonnavigable waters and to take over the role of the States, the public will believe you. Redefining the law "for the good of the people" is just good government.
Lesson 3–Use Lawyers’ Tricks
As a federal agency, you have lots of tricks up your sleeve. Trick number one; always construe "unfavorable" court opinoins narrowly and "favorable" court opinions broadly so as to justify expanding federal authority. For example, you should take the position that the Supreme Court decision in SWANCC (2001), that prohibits federal regulation of isolated water bodies, applies only to the unique circumstances of that one case. You should, however, take the opposite position with respect to the Kennedy opinion in Rapanos (2006). Although that decision only authorized federal regulation of certain wetlands, you should spin it like the Act itself and claim it allows federal regulation of virtually all waters in the Nation. Trick number two; promulgate ambiguous regulations of indeterminate meaning that allow agency officials to enforce the Act as broadly (i.e., as arbitrarily) as they want. The dense 39-pages of "clarifying" Draft Guidance is ideal. It obscures more than it reveals. And last, but certainly not least, trick number three. Present your broad and novel interpretations of the law in the form of "nonbinding, internal guidance" that is generally immune from legal challenge. This sleight of hand allows unreasonable and inconsistent application of the law with little or no accountability.
Lesson 4–Play Word Games
Taking words out of context, or giving them novel meanings, is important because no matter what the law says or a court decides, you can always use it to your advantage. Take, for example, the Corps and EPA’s rendering of the Clean Water Act’s express prohibition on the discharge of a pollutant into "navigable waters" to cover nonnavigable waters. Just beautiful! You can see the potential. But the Draft Guidance is unequaled in its gaming of words. In Rapanos some of the Supreme Court Justices authorized the regulation of wetlands that are "indistinguishable" from a lake, river or stream, such that one cannot tell where the water ends and there is "a continuous surface connection" between the two. But the Draft Guidance states "a continuous surface connection does not require the presence of water at all times in the connection." In other words, "a continuous surface connection" does not require "a continuous surface connection." It doesn’t get any better than that.
Lesson 5–Look Reasonable, But Don’t Give An Inch
If you intend to drastically change agency practice, say for example by asserting federal authority over every pond, puddle and ditch in the Country, you cannot appear to be doing so. This is perhaps the most important lesson. You must appear reasonable. You can do this in a number of ways. See Lessons 1 and 2. But the most effective way to appear reasonable is to make your critics appear unreasonable. For instance, some who have criticized recent legislative attempts to expand the Clean Water Act have argued that the draft bills were so broad they could encompass even swimming pools and ornamental ponds. To avoid this argument, the Draft Guidance states that swimming pools and ornamental ponds are "generally not protected by the Clean Water Act." This apparent exemption marginalizes your critics while keeping the regulated public and the courts off balance. The word "generally" keeps your options open. You can claim swimming pools and ornamental ponds are exempt, but you can regulate them if you wish. The same goes for other "exemptions" listed in the guidance. You look reasonable without giving an inch.
And that’s how to "grow" Big Government in 5 easy lessons.