WHO REGULATES THE REGULATORS?

Administrative agencies, primarily the federal ones often identified by an alphabet soup of letters, appear to regulate every aspect of our personal and commercial lives. USEPA--the United States Environmental Protection Agency as it more formally is known--is but one small example of an administrative agency.

But exactly what is a federal administrative agency? It is not one of the Constitutional three branches of our federal government. It is like a fourth branch of government, yet most agencies have attributes of all three branches: the legislative branch, by reason of rulemaking authority; the judicial branch, by reason of hearing, cease and desist and penalty authority; and the executive branch, by reason of permitting and authority. Administrative agencies such as USEPA can exercise all three kinds of functions, and do so.

Who regulates administrative agencies to assure that they do not exceed their authority? In theory, these agencies are creatures of the legislature. In effect, Congress has delegated a portion of its authority to federal agencies by means of statutes. Therefore, a primary measure of the propriety of an agency action is whether the agency has exceeded its statutory authority. Whether an agency has failed this test is to be determined by the courts.

A good example occurred in January when a federal District Court held that USEPA exceeded its statutory authority when it attempted to regulate the flow of stormwater into a Virginia watershed. Under the Clean Water Act, USEPA sought to establish the total maximum daily load ("TDML") of sediment "pollution" entering a creek by regulating storm water flow into the creek, not the actual sediment. Sediment was the primary cause of impaired water quality in the creek. However,, USEPA sought to regulate stormwater flow, a non-pollutant, as a surrogate for sediment. As the court put it, "Does the Clean Water Act authorize the EPA to regulate the level of a pollutant in Accotink Creek by establishing a TMDL for the flow of a nonpollutant into the creek?"

The court held that the Clean Water Act did not authorize EPA to regulate nonpollutants or to use nonpollutants as a surrogate for regulation of pollutants, saying that in the in establishment of TDMLs, "EPA may not regulate something over which it has not statutorily granted power..." THe court concluded, "Claiming that the stormwater maximum load is a surrogate for sediment, which is a pollutant and therefore reguable, does not bring stormwater within the ambit of EPA's TMDL authority. Whatever the reason EPA has for thinking that a stormwater flow rate TMDL is a better way of limiting sediment load than a sediment load TMDL, EPA cannot be allowed to exceed its clearly limited statutory authority." (Virginia Department of Transportation v. United States Environmental Protection Agency, U.S. District Court, Eastern Division of Va., No. 1:12-CV-775, January 3, 2013)

Yeas ago, Justice Cardozo one referred to the tendency of a principle to extend to the limits of its logic. When an administrative agency extends beyond the limits of its statute, its authority falls off the judicial cliff.

DEFINING MOMENTS IN WATER

Probably nearly everyone has had some kind of defining moment involving water--where water has shaped a life experience or has influenced learning or behavior. Some may have had more than one of such moments.

My first defining moment with water occurred at an age of 18 months. My parents took me with them on a vacation in the Black Hills of South Dakota. They had had a particular affinity for that area, having had a camping honeymoon years before in the Badlands and the Hills--at a time when free ice water at Wall Drug was a necessity.

We stayed in one of those tiny cottages, probably built in the 1920s, in Baken Park, a tourist spot in Rapid City. (Remember, Cary Grant was "hospitalized" in Rapid City in North By Northwest). Today, of course, Baken Park is a strip mall.

One day, we toured the Iron Mountain Highway, a mountain road near Mt.Rushmore. The road curves up and down with countless switchbacks--resembling an unbroken whole orange peeling. At one point along the road, my father spied a unique tourist site--a fresh water spring gushing out of a huge granite rock along the roadside. Several tourists were gathered around the spring, filling thermos and bumper water bags or just cupping the cool water to their eager mouths.

My father parked our 1940 green Buick sedan on the shoulder and hopped over to the spring to join the water excitement, while my mother stayed in the car with me. Suddenly, the car began to roll backwards, toward the edge of the shoulder and the deep valley below--the parking brake did not hold. My mother was not a driver and could not tell a brake pedal from a clutch pedal. But, she had strong lungs and could shout! Several nearby men came running and grabbed the front bumper to slow the car, while another one jumped in to apply the brakes--right before the car would have rolled away.

For me, that was a defining moment in water--defining because it has made possible my writing this 100th posting of this blog.

WATER UTILITY SECURITY BEGINS AT HOME

In reaction to the events of 9/11, water utilities have initiated enhanced security measures, including performance of vulnerability assessments and installation of gated fences, video monitoring, visitor identification protocols and the like.

However, for some utilities one form of internal security risk may have been overlooked. A common form of access to water system facilities occurs when outside engineers, consultants, contractors, suppliers and others inspect the facilities or view drawings and records in the course of performing work for a utility. Fencing, gates and video cameras do not control such access, if unfettered. Indeed, such access, if uncontrolled, can expose sensitive information to such persons, and indirectly to third persons, thereby possibly increasing vulnerability risks to utility assets.

Even simple forms of such access can cause risks. For example, when a utility initiates a public bidding process for a proposed construction project, potential bidders likely will have access to drawings, specifications, records and even the facility itself. These forms of access can result in sensitive information about a utility to remain in files of unsuccessful bidders as well as engineers, contractors, etc., with such files being available to persons not directly related to a project for the utility.

One way a utility may be able to protect its sensitive information from unauthorized use is by means of protective agreements with such persons needing access to facilities and information, including potential bidders. Such agreements can establish boundaries for access, use, retention and disposal of sensitive information obtained by persons given access to such information. In addition, protective agreements can specify consequences, both monetary and otherwise, for any breach of such an agreement. Protective agreements can be stand alone agreements or can be incorporated in the terms of agreements for services, purchases, or construction and in bidding documents. Of course, as in the case of any agreement, compliance with the terms of a protective agreement should be monitored carefully.