[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
A WASHINGTON, DC-BASED BUREAUCRATIC INVENTION WITH POTENTIAL WATER
CONSERVATION AND PROPERTY RIGHTS IMPACTS: THE NATIONAL BLUEWAYS ORDER
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON WATER AND POWER
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
Wednesday, July 17, 2013
__________
Serial No. 113-34
__________
Printed for the use of the Committee on Natural Resources
Available via the World Wide Web: http://www.fdsys.gov
or
Committee address: http://naturalresources.house.gov
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COMMITTEE ON NATURAL RESOURCES
DOC HASTINGS, WA, Chairman
PETER A. DeFAZIO, OR, Ranking Democratic Member
Don Young, AK Eni F. H. Faleomavaega, AS
Louie Gohmert, TX Frank Pallone, Jr., NJ
Rob Bishop, UT Grace F. Napolitano, CA
Doug Lamborn, CO Rush Holt, NJ
Robert J. Wittman, VA Raul M. Grijalva, AZ
Paul C. Broun, GA Madeleine Z. Bordallo, GU
John Fleming, LA Jim Costa, CA
Tom McClintock, CA Gregorio Kilili Camacho Sablan,
Glenn Thompson, PA CNMI
Cynthia M. Lummis, WY Niki Tsongas, MA
Dan Benishek, MI Pedro R. Pierluisi, PR
Jeff Duncan, SC Colleen W. Hanabusa, HI
Scott R. Tipton, CO Tony Cardenas, CA
Paul A. Gosar, AZ Steven A. Horsford, NV
Raul R. Labrador, ID Jared Huffman, CA
Steve Southerland, II, FL Raul Ruiz, CA
Bill Flores, TX Carol Shea-Porter, NH
Jon Runyan, NJ Alan S. Lowenthal, CA
Mark E. Amodei, NV Joe Garcia, FL
Markwayne Mullin, OK Matt Cartwright, PA
Chris Stewart, UT Vacancy
Steve Daines, MT
Kevin Cramer, ND
Doug LaMalfa, CA
Jason T. Smith, MO
Todd Young, Chief of Staff
Lisa Pittman, Chief Legislative Counsel
Jeffrey Duncan, Democratic Staff Director
David Watkins, Democratic Chief Counsel
------
SUBCOMMITTEE ON WATER AND POWER
TOM McCLINTOCK, CA, Chairman
GRACE F. NAPOLITANO, CA, Ranking Democratic Member
Cynthia M. Lummis, WY Jim Costa, CA
Scott R. Tipton, CO Jared Huffman, CA
Paul A. Gosar, AZ Tony Cardenas, CA
Raul R. Labrador, ID Raul Ruiz, CA
Markwayne Mullin, OK Vacancy
Chris Stewart, UT Peter A. DeFazio, OR, ex officio
Doug LaMalfa, CA
Doc Hastings, WA, ex officio
--------
CONTENTS
----------
Page
Hearing held on Wednesday, July 17, 2013......................... 1
Statement of Members:
Lummis, Hon. Cynthia M., a Representative in Congress from
the State of Wyoming....................................... 5
McClintock, Hon. Tom, a Representative in Congress from the
State of California........................................ 1
Prepared statement of.................................... 3
Napolitano, Hon. Grace F., a Representative in Congress from
the State of California.................................... 4
Prepared statement of.................................... 5
Smith, Hon. Jason T., a Representative in Congress from the
State of Missouri.......................................... 6
Statement of Witnesses:
Bacon, Sutton, President and CEO, Nantahala Outdoor Center,
Bryson City, North Carolina................................ 16
Prepared statement of.................................... 17
Budd-Falen, Karen, Owner/Partner--Budd-Falen Law Offices, LLC 21
Prepared statement of.................................... 22
Crawford, Hon. Eric A. ``Rick'', a Representative in Congress
from the State of Arkansas................................. 8
Griffin, Hon. Robert T., Judge, Independence County,
Batesville, Arkansas....................................... 8
Prepared statement of.................................... 10
Justice, Eddy, Popular Bluff, Missouri....................... 13
Prepared statement of.................................... 14
Additional Material Submitted for the Record:
U.S. Department of the Interior, Prepared statement of....... 46
OVERSIGHT HEARING ON A WASHINGTON, DC-BASED BUREAUCRATIC INVENTION WITH
POTENTIAL WATER CONSERVATION AND PROPERTY RIGHTS IMPACTS: THE NATIONAL
BLUEWAYS ORDER
----------
Wednesday, July 17, 2013
U.S. House of Representatives
Subcommittee on Water and Power
Committee on Natural Resources
Washington, DC
----------
The subcommittee met, pursuant to notice, at 2 p.m., in
room 1334, Longworth House Office Building, Hon. Tom McClintock
[Chairman of the subcommittee] presiding.
Present: Representatives McClintock, Lummis, Tipton, Gosar,
Napolitano, and Huffman.
Also Present: Representatives Smith of Missouri, and
Crawford.
Mr. McClintock. The subcommittee will come to order. Before
we begin with statements from Members and witnesses, I would
ask unanimous consent that Mr. Smith of Missouri and Mr.
Crawford of Arkansas be allowed to sit with the subcommittee
and participate in today's hearing.
[No response.]
Mr. McClintock. Hearing no objection, so ordered.
We will begin with 5-minute opening statements.
STATEMENT OF THE HON. TOM McCLINTOCK, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. McClintock. Today, the Subcommittee on Water and Power
meets to take testimony on the administration's so-called
``National Blueways Order,'' and to hear from communities that
have been impacted by this order.
The National Blueways Order appears to have originated
through a leftist environmental organization called ``American
Rivers,'' whose CEO at the time, Rebecca Wodder, is now Senior
Advisor to the Department of the Interior, spearheading this
drive. Ms. Wodder was invited to appear before the subcommittee
but has declined to do so.
In a nutshell, the National Blueways Order was never
authorized by Congress, but simply imposed by administrative
fiat in May of last year through Secretarial Order 3321.
Although the Department cites broad general authority under
three Federal acts, as we shall hear, these claims are dubious
and yet to be tested in court.
This sweeping order, whose stated intention is to impose
Federal designations on waterways that it describes as ``a
headwaters-to-mouth approach to rivers management,'' is
asserting authority that Congress has hitherto reserved to
itself through the Wild and Scenic Rivers Act. The Secretarial
Order allows ``any established stakeholder partnership''--which
would include distant environmental advocacy groups--to
nominate a river and for the Department then to impose the
designation. As we shall hear, the implications of this
designation can be economically devastating to local economies.
For example, in January of this year, the Department
announced the designation of the White River watershed as a
Blueway, a 17.8 million-acre drainage area spanning 60 counties
and 722 miles of mainstem river in southern Missouri and
northern Arkansas. As we shall hear, it did so with no public
testimony and despite widespread local opposition. Less than 2
weeks ago, the Department was forced to abandon this plan in
the face of rapidly mounting local and congressional
opposition.
Although the order speaks of coordination and consultation,
we have learned that there is none. Indeed, in April, this
subcommittee heard testimony from a Wyoming conservation
director about the process he had witnessed in his own region.
He asked, ``How can a designation that requires no public
notice, no comment opportunity, and was created without
coordination or consultation with affected landowners, local
governments or States, result in increased coordination?''
The implications of this overreach are breathtaking. As a
recent letter signed by 79 environmental advocacy groups says,
``With 3.5 million miles of rivers across the country, we have
only scratched the surface when it comes to establishing
Blueways. There is tremendous potential to expand existing
trails and create new ones.''
Now, to those who suggest that these orders are a precursor
to enhancement of recreational opportunities along these
waterways, I invite them to look toward Yosemite National Park
in my district, where the administration is seeking to expel
long standing recreational services from the Yosemite Valley,
including bicycle and raft rentals, horseback riding, and many
other commercial amenities.
This subcommittee has repeatedly invited Ms. Wodder to
testify about this sweeping ``headwaters to mouth'' National
Blueways Order and continues to seek answers to many questions,
including the legal authority for this order; the process by
which the designation is imposed; the regulatory implications
of designation; and the due process afforded by all those who
are directly impacted by it. To date, this subcommittee has
been met by silence.
Earlier today, in response to rapidly building public
opposition, the new Secretary of the Interior offhandedly
announced she is calling a pause to the Bluewaters order,
``until we figure out the future of the program.'' Well, the
subcommittee welcomes this announcement. But the question
occurs, does this mean a pause until the heat dies down, or
does it mean a genuine intention to step back from a legally
suspect, economically damaging, and politically unpopular
initiative? That is one of the questions I would have liked to
have asked Ms. Wodder.
The Congress and the American people are entitled to
forthright answers from this administration, not stonewalling.
This is particularly urgent in light of the avowed intention by
the program's supporters to turn their sights on all 3.5
million miles of American streams and rivers. But we can at
least shine a light on this practice by affording those
citizens and taxpayers who have been directly affected by it to
have a say in the decisionmaking process, and we do so today.
The prepared statement of Mr. McClintock follows:]
Prepared Statement of The Honorable Tom McClintock, Chairman,
Subcommittee on Water and Power
Today, the Water and Power Subcommittee meets to take testimony on
the administration's so-called ``National Blueways Order,'' and to hear
from communities that have been impacted by this order.
The National Blueways Order appears to have originated through a
leftist environmental organization called ``American Rivers,'' whose
CEO at the time, Rebecca Wodder, is now Senior Advisor to the
Department of the Interior spearheading this drive. Ms. Wodder was
invited to appear before the subcommittee but has declined to do so.
In a nutshell, the National Blueways Order was never authorized by
Congress, but simply imposed by administrative fiat in May of last year
through Secretarial Order 3321. Although the Department cites broad
general authority under three Federal acts, as we shall hear, these
claims are dubious and yet to be tested in court.
This sweeping order, whose stated intention is to impose Federal
designations on waterways that it describes as ``a headwaters to mouth
approach to rivers management,'' is asserting authority that Congress
has hitherto reserved to itself through the Wild and Scenic Rivers Act.
The Secretarial Order allows ``any established stakeholder
partnership''--which would include distant environmental advocacy
groups--to nominate a river and for the Department then to impose the
designation.
As we shall hear, the implications of this designation can be
economically devastating to local economies.
For example, in January of this year, the Department announced the
designation of the White River watershed as a Blueway--a 17.8 million-
acre drainage area spanning 60 counties and 722 miles of mainstem river
in southern Missouri and northern Arkansas.
As we shall hear, it did so with no public testimony and despite
widespread local opposition. Less than 2 weeks ago, the Department was
forced to abandon this plan in the face of rapidly mounting local and
congressional opposition.
Although the order speaks of coordination and consultation, we have
learned there is none. Indeed, in April, this subcommittee heard
testimony from a Wyoming conservation director about the process he had
witnessed in his own region and asked, ``How can a designation that
requires no public notice, no comment opportunity and was created
without coordination or consultation with affected landowners, local
government or States result in increased coordination?''
The implications of this overreach are breathtaking. As a recent
letter signed by 79 environmental advocacy groups says, ``With 3.5
million miles of rivers across the country, we have only scratched the
surface when it comes to establishing Blueways. There is tremendous
potential to expand existing trails and create new ones.''
To those who suggest that these orders are a precursor to
enhancement of recreational opportunities along these waterways, I
invite them to look toward Yosemite National Park, in my district,
where the administration is seeking to expel long standing recreational
services from the Yosemite Valley, including bicycle and raft rentals,
horseback riding, and many other commercial amenities.
This subcommittee has repeatedly invited Ms. Wodder to testify
about this sweeping ``headwaters to mouth'' National Blueways Order and
continues to seek answers to many questions, including the legal
authority for this order; the process by which the designation is
imposed; the regulatory implications of designation and the due process
afforded all those directly impacted by it.
To date, the subcommittee has been met by silence.
The Congress and the American People are entitled to forthright
answers from this administration, not stonewalling. This is
particularly urgent in light of the avowed intention by the programs
supporters to turn their sights on all 3.5 million miles of American
streams and rivers.
But we can at least shine a light on this practice by those
citizens and taxpayers who have been directly affected by it, as we do
today.
______
Mr. McClintock. I yield back the balance of my time, and
recognize the Ranking Member for 5 minutes.
STATEMENT OF THE HON. GRACE F. NAPOLITANO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mrs. Napolitano. Thank you, Mr. Chairman. And today's
hearing focuses on the Secretarial Order that created the
National Blueways program. The intent of the program should be
one that both Democrats and Republicans and others should
support: a more coordinated effort by Federal agencies to
support the actions of localities in the watershed. Yet today
we are here to criticize the program that is voluntary. It is
discretionary and, essentially, a designation only in name.
I agree with the Majority there are questions about the
program that need to be addressed, and I am especially
interested in the role that public input and participation has
played in the designations. I am disappointed the Department
chose not to testify at today's hearing. However, I believe
Secretary Jewell's comments today at an earlier morning
committee hearing, her commitment to delve into the details of
the program before additional designations are made should help
alleviate concerns from the other side of the aisle. Her
decision to rescind the White River designation is also an
indication the Department is taking a hard look at the program.
There are very real concerns about the program, which we will
hear from our witnesses today.
And the committee is also taking this issue on the road
with a field hearing in Rep. Smith of Missouri's district in 2
weeks. Yet there are also very real concerns across the
country, due to drought. As of last week, nearly half the
country is experiencing moderate to exceptional drought.
Drought record and record-high temps have led to extremely dry
conditions, creating fodder for the wilderness fires
scorching--the wildfires also scorching the Southwest and the
West.
As the authorizing committee, we have the ability to hear
legislation like the Drought Relief Act. The Drought Relief Act
is a widely supported program that would provide the Bureau of
Reclamation with tools to help our communities in time of
drought. Yet, despite being introduced at the beginning of
Congress, and the authorization having expired last year, it is
yet to have a hearing. There are also several tribal water
rights settlements like the Black Feet settlement in Montana,
that are waiting introduction and subsequent committee
consideration. There is also legislation like the Desalination
Act that has had a hearing and is waiting a mark-up. Mr.
Chairman, I hope we can work together to consider these issues
and subsequent legislation in the near future.
I thank our witnesses, and also would like to introduce
into the record the current drought map, which shows central--
experiencing high amounts of drought. And also, for the record,
letters of support from--Connecticut River designation from
David Bingham, private citizen; Frederick Gahan, private
citizen; Dannel Malloy, Governor of Connecticut. As the
committee may know, citizens in New England have long fought
for private property rights, dating back to the original Tea
Party of 1773. I submit for the record letters of support from
local governments, including the city of Augusta in Woodruff
County, and the city of Clarendon in Monroe County.
Testimony received today also stated there were no local
governments in support of either the Connecticut or the White
River designations. Yet I am introducing this into the record
to show that this is the correct support from those areas.
Mr. McClintock. Without objection.
Mrs. Napolitano. And I yield back.
[The prepared statement of Mrs. Napolitano follows:]
Prepared Statement of The Honorable Grace F. Napolitano, Ranking
Member, Subcommittee on Water and Power
Today's hearing focuses on the Secretarial Order that created the
National Blueways Program. The intent of the program should be one that
Democrats and Republicans support: a more coordinated effort by the
Federal agencies to support the actions of the localities in the
watershed. Yet here we are today to criticize a program that is
voluntary, discretionary, and essentially, a designation only in name.
I agree with the Majority that there are many questions about this
program that need to be addressed. I am especially interested in the
role that public input and participation has played in the
designations. I am also disappointed that Department chose not to
testify at today's hearing. However, I believe that Secretary's
Jewell's comments earlier this morning, and her commitment to delve
into the details of this program before additional designations are
made, should help alleviate concerns from the other side of the aisle.
Her decision to rescind the White River designation is also an
indication that the Department is taking a hard look at this program.
There are very real concerns about this program, which we will hear
about from our witnesses today. The committee is also taking this issue
on the road with a field hearing in Rep. Smith of Missouri's district
in 2 weeks.
Yet Mr. Chairman, there are also very real concerns across this
country due to drought. As of last week, nearly half the country is
experiencing moderate to exceptional drought. The drought and record
high temps have led to extremely dry conditions, creating fodder for
the wildfires scorching the west. As the authorizing committee, we have
the ability to hear legislation, like the Drought Relief Act. The
Drought Relief Act is a widely supported program that would provide the
Bureau of Reclamation with tools to help our communities in a time of
drought. Yet despite being introduced since the beginning of Congress,
and the authorization having expired last year, it has yet to have a
hearing.
There are also several tribal water rights settlements, like the
Blackfeet Settlement in Montana, that are awaiting introduction and
subsequent committee consideration. There is also legislation, like the
Desalination Act that has had a hearing and is awaiting a markup. Mr.
Chairman I hope we can work together to consider these issues and
subsequent legislation in the near future. Thank you for our witnesses
for being hearing today. I look forward to hearing your testimony.
______
Mr. McClintock. The Chair recognizes Mrs. Lummis of Wyoming
for 5 minutes.
STATEMENT OF THE HON. CYNTHIA M. LUMMIS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WYOMING
Mrs. Lummis. Thank you, Mr. Chairman, for holding this
hearing. Wyoming's conservation districts, county
commissioners, State legislators, and other citizens are
concerned about the National Blueways program, and rightly so.
Five or 6 months ago, none of us really knew what a Blueway
was. But thanks to Wyoming's neighbors in Montana, we learned
that Interior official Rebecca Wodder was actively pushing for
a designation of the Yellowstone River watershed. That is 22
million acres in Wyoming being targeted for a mysterious new
Federal designation. Yet the Department of the Interior did not
engage a single Wyoming official or water user, not a one.
So, we did our homework. And what we found is not
encouraging. We have learned that a Blueway designation could
potentially undermine private property rights, State primacy
over water law, and local conservation efforts. We have learned
that a Blueways designation can occur with no formal public
process or opportunity for public comment. All it takes is the
swipe of a pen.
Today we have an opportunity to explore another dimension
of this controversial order. Under what authority does the
Department of the Interior believe it can designate and manage
millions of acres of private, State, and Federal land? This
program, having been concocted by the Department of the
Interior, the Congress has an opportunity and responsibility to
examine whether they have the legal authority to do so.
Mr. Chairman, I am pleased to welcome Karen Budd-Falen of
Cheyenne, Wyoming, who will help us unravel that very question.
Ms. Budd-Falen is a renowned private property and western water
rights lawyer. Her legal representation is a tremendous asset
to Wyoming citizens whose livelihoods are affected by the
decisions of Federal agencies and the environmental litigation
that all too often follows. In addition to her legal practice,
she has generated an impressive amount of policy literature. I
want to commend her for her recent work to expose the abuse of
the legal system by radical environmental organizations, in
many cases at taxpayer expense, under attorney fee-shifting
statutes.
Coincidentally, she has identified a potential litigation
problem with the National Blueways program, something I hope we
can explore today. I also look forward to her insight on the
legal basis, or lack thereof, for the National Blueways
program.
Ms. Budd-Falen has appeared before Congress and this
committee several times over the years. We are fortunate to
have the benefit of her expertise.
With that, thank you, Ms. Budd-Falen, for coming to
testify, and thank you, Mr. Chairman, for holding this hearing
and paying much deserved attention to this important issue. I
yield back.
Mr. McClintock. Thank you.
The Chair now recognizes Mr. Smith of Missouri for 5
minutes.
STATEMENT OF THE HON. JASON T. SMITH, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MISSOURI
Mr. Smith. Thank you, Mr. Chairman, for having us. And
thank you for hosting the committee. Before I make my remarks,
I would first like to thank the witnesses for taking their time
in traveling to Washington today to testify, including my good
friend, Mr. Eddy Justice.
Eddy hails from Poplar Bluff, a city in my district, that
would have been included in the White River National Blueway.
In addition to being a friend, Eddy uses the river for boating
and camping frequently, and is an active member of the Popular
Bluff civic community, has some unique insight into how his
community and surrounding communities in Missouri were not
included in the designation process at all.
The process for designating these national Blueways has not
always been voluntary, open, or public. And I commend these
witnesses for being willing to discuss the Blueways issues
today in an open forum. In much the same way, I am disturbed by
the refusal of Ms. Rebecca Wodder to testify today.
Though this program is trumpeted as voluntary, open, and
public, Ms. Wodder does not appear to be interested in making
voluntary, open, and public comments at all.
First, let me provide a little background about the
district that I represent. Missouri's eighth congressional
district contains 30 counties in southeast and southern
Missouri. It starts 40 miles south of St. Louis, goes down the
mighty Mississippi, including the Bootheel Region, to about 40
miles east of Springfield, Missouri, to the very northwest
corner of Rolla.
My district is agriculturally diverse, growing everything
but citrus and sugar. Importantly, for the purpose of this
hearing, 14 of the 30 counties in my district contain land that
would have been within the White River National Blueway
designation. In addition, our district includes the Ozark
National Scenic Riverways, a National Park Service entity that
spans through five counties on the western side of my district,
including my home county of Salem.
The parts of our local economy that are not driven by
agriculture rely heavily on tourism and natural resources.
Folks come from all over the State and around the country to be
guided on float trips on the rivers and streams contained in my
district. We have a thriving timber industry that produces
lumber, charcoal, and finished wood products, and some of the
district's largest employers mine lead and smelt aluminum.
What is the common thread that ties together the components
of agriculture, tourism, and natural resources in my district?
Property rights and our ability to use the land, and its
bounty, to make a living. All too often, the Federal Government
tugs at this thread, threatening to unwind the fabric of our
economy. Whether it is new regulations restricting farm labor,
new EPA carbon emission rules that would shutter our largest
employers, or shutting down access and restricting the use of
our rivers and streams, my district is under attack.
My constituents and I are tired of unelected Washington, DC
bureaucrats creating new programs out of thin air that have the
ability to end our way of life and the way that we make a
living. While the White River National Blueways has been
withdrawn, it is only the latest symptom of a disease that has
embedded itself into the very core of this administration. They
think that they know better than locals, and they think they
can act on their own without congressional approval or
oversight. Where does it stop?
I challenge the members of this committee today to make it
our goal not only to stop the National Blueways system all over
the country, but also to fight the disease that has spawned.
Local groups and individuals are often the best situated to
manage their lands and resources. We don't need bureaucrats,
mandates sent from them on high that may have drastic
repercussions for our local communities.
Thank you, Mr. Chairman.
Mr. McClintock. Thank you. The Chair next recognizes the
gentleman from Arkansas, Mr. Crawford, for 5 minutes.
STATEMENT OF THE HON. ERIC A. ``RICK'' CRAWFORD, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARKANSAS
Mr. Crawford. I thank the Chairman and appreciate your
latitude here today. Thank you for holding this hearing. And I
would like to welcome Judge Robert Griffin, and thank him for
coming here today to testify.
Judge Griffin led the efforts to oppose the Blueway
designation in Arkansas' Independence County. I am very happy
that he has agreed to come here today to share with us his
experience with how this designation was handed down from
Washington with little input from or notice to the people it
would affect most.
I also would request unanimous consent to submit for the
record the resolutions from several of the counties in my
State, including one from Judge Griffin's Independence County,
which requested the Department of the Interior's rescission of
this designation.
Mr. McClintock. Without objection.
Mr. Crawford. I think it is critically important that we
hear and understand why so many rejected this designation. And
hopefully it will serve as a lesson for Washington bureaucrats
that national pronouncements of local programs shouldn't be
made without the input of those that they will most affect.
And with that, I yield back.
Mr. McClintock. The Chair notes that the bells have rung
for attendance on the House Floor. But we should have at least
another 10 minutes that we can comfortably continue to meet. So
I will go ahead and begin with the public testimony.
Again, for all of our witnesses, as we outlined in the
invitation letter, the rules allow 5 minutes per testimony.
There will be a green light until the final minute, when a
yellow light will go on, and a red light at the end of 5
minutes.
And with that, I am very pleased to recognize The Honorable
Robert Griffin, an Independence County judge from Batesville,
Arkansas, to testify.
STATEMENT OF THE HON. ROBERT T. GRIFFIN, JUDGE, INDEPENDENCE
COUNTY, BATESVILLE, ARKANSAS
Judge Griffin. Mr. Chairman, Ranking Member, honorable
members, I welcome this opportunity to come before you to
explain the grassroots effect of having an executive-driven
initiative come downstream.
And first, I want to explain what a county judge is because
it may be a foreign concept to this committee. I am more the
county administrator. I do have a limited judicial role, but
very limited. So, I am over the system of roads, I am over the
administration, the legislation of the quorum court. And I
choose to honor the separation of the government in our county.
When I have the executive ability to do things, I do not do
them, I would rather involve my quorum court and seek their
input. So I am very much against executive-driven directives.
The White River bisects our county. The main concern I
had--and, again, since my written testimony is for the record
already--is to discuss the way that it is seen in their
initiatives. In the nominating document, it does not recognize
the White River having any significance, except limiting fish
passage. That reservoir that is created by lock one, is a
reservoir of water for 25,000 people. It is a reservoir for
farmers to irrigate from. And it has much more significance--it
feeds our industries that are located in Batesville, Arkansas,
in the nearby proximity. So it has a much deeper impact than
just the passage of fish. It has been there for 100-something
years, impacting in that manner. Yet we have seen our county
grow from the 1950s to double in population into the 2000s.
The partnerships that it implies--we fully support
partnerships. We partner with the Game and Fish Commission on
half a dozen projects in our county. Those are voluntary
participations. If there is a project that we can try to do,
then we work together. Also, NRCS, a national agency under the
Department of Agriculture, we partner with them in various
projects. In fact, we have two or three that we are working
toward right now. But again, those are voluntary
participations. That is where we identify a problem, we seek
their help, we go through the permitting process, and we do the
things that are necessary to help impact the lives of our
citizens in Independence County.
Eighty percent of our property is privately owned. And we
can only imagine what initiatives may be brought down when the
Secretarial Declaration 3321 implies broad United States Code
in being able to enact this partnership.
Something else that is much more troubling is the fact that
they seek to solicit other partners and manage those partners.
And that was done in a way that they have at least three
solicitations for the nomination from local governmental--or
quasi-governmental--agencies. The Mayor of Clarendon has a
project that is being worked with the Corps on the Cache River.
He was encouraged to write a letter of support in exchange for
the hope of more funding for that project. The Major of
Augusta, Arkansas, I spoke with him. Now, this is hearsay,
because I spoke to him and I am relaying it to you. I talked to
him. He has a U.S. Fish and Wildlife office that he trusts that
agent very much, and he asked for his support, and he did. One
of my local county judges is on a Cache River Coalition, a
project that very desperately needs to be done. There is a log
jam that has been there in existence probably 40 or 50 years
that they now have been working toward moving it in a voluntary
partnership with the Corps and other partners. He was
encouraged on the promise of funding. But the truth is, the
funding for all these projects is already there and was already
there. But that is a perfect example of how they were solicited
for their support, and managed to believe what it was saying.
Water is very important, not just to California, Ranking
Member. I mean--and I know you are--I think Los Angeles County,
you live in about a 100,000-population city--water is very
important. Your city is out of water today if you were over in
Maryland--100,000 people out of water of a 54-inch water main,
3 to 5 days they are going to be out of water. If you don't
think water is important to them, and their access to that
water, go talk to those people today. They are not going to
have a shower or water to drink in that length of time.
So, it has an impact, even to the public utility, in the
aspect that the people need water.
The main problem is--and I am going to quote what I said--
is found in Cool Hand Luke, when the captain explained to Luke,
``What we have here is failure to communicate.''
This process was done, executive-driven, it come downstream
to us, and we had to live with the result. Thankfully, it has
been withdrawn at this time. We would hope to see the entire
thing rescinded. And I think the suspicious wording is somewhat
troubling.
Mr. Chairman, I thank you for this opportunity.
[The prepared statement of Judge Griffin follows:]
Prepared Statement of The Honorable Robert T. Griffin, Judge,
Independence County, Batesville, Arkansas
Chairman McClintock, Ranking Member Napolitano, and Honorable
members of the subcommittee, I am Robert Griffin, County Judge and the
Chief Elected Official of Independence County, Arkansas located in
northeastern Arkansas and bisected by the White River of recent
``National Blueway'' fame through Department of the Interior
Secretarial Order 3321. As a third generation farmer/landowner in the
White River Watershed, my life has been devoted to agriculture along
the many links to the White River in our county. As well, I am very
familiar with the conservation programs provided by the USDA through
the years. As owner and operator of a United States Federal Warehouse
Act grain facility for 30 plus years, I dealt with the regulatory
protection administered by the act and as well, dealt day to day with
the farmers within the watershed. As a land owner, I have participated
in several voluntary conservation programs of the USDA. I see the 80
years of historical evidence throughout our county of the conservation
efforts brought forth by the dust bowl years beginning in 1933
beginning with the Soil Erosion Service. Our county is dotted with land
terraced for protection of soil erosion in voluntary participation with
the partnership of the Federal Government. As County Judge, I must be
concerned with issues that impact the residents of Independence County
and as well, part of my responsibilities is the maintenance of roads
and the drainage from those lifelines of society goes directly into the
watershed.
Independence County is the perfect place to examine the potential
effects of the Blueway designation due to the fact the White River
bisects our county. Independence County is at the ``fall line''
separating the Ozarks from the Mississippi Alluvial Plain, thereby
splitting the fertile river bottom soil and the beginning of the
mountains. We split evenly between forest at 49 percent and cropland/
pastures at 50 percent with 1 percent surface water. This makes us a
kindred spirit with the Western States of Washington, Idaho and Oregon
that share the same balance of forest and crop/pasture/rangeland uses.
In fact, the entire acreage within the White River Watershed is
comprised of a similar distribution of forest and cropland/pasture/
rangeland as those Western States named. We are you.
I am pleased today to be able to communicate to you the sorted
problems with top driven initiatives but first I ask you to indulge me
to begin with an analogy that I believe puts most of the problems into
perspective. In the film Cool Hand Luke, the captain has to explain to
Luke the core of his issues. When he states, ``What we've got here is
failure to communicate'', he sums up as well the problems with the
National Blueway, NO COMMUNICATION!
The executive branch began with declaring the AGO (America's Great
Outdoors) initiative. This was intended to reshape the conservation
efforts of the Nation. The Secretary of Interior followed up this
initiative with Secretarial Order 3321, declaring the National Blueways
System designation and edict for the stakeholders to join together in a
cooperative manner to accomplish stated goals. The first problem is
defining stakeholders to be agencies under the Interior Department,
Department of Agriculture and Army to name a few. The true stakeholders
are the 80 percent of people in Arkansas that are private property
owners graced with a dubious honor with unknown consequences.
I want to point out the wording in the initiative whereby it is
``not intended too''. My analogy here is that each day in America,
millions of people leave home for some destination by automobile not
intending to have a wreck. Yet, the result, each day, is multiple
millions of dollars of property damage, injuries and death. All of this
was unintended when they began the journey. Somehow the wording of
unintended does not give comfort when the executive branch is expecting
results and some of the goals seem to target our way of life.
Agriculture is identified as the single largest contributor to issues
within the watershed, both good and BAD. Mr. Chairman and members of
the committee, each of your States are identified as being heavily
dependent upon agriculture and/or forestry, just as my beloved Arkansas
and Independence County are as well. When the top income generator of
your economy is targeted as the biggest contributor of bad issues
within the watershed, the words not intended are somewhat disconcerting
when the goals such as are stated belie the issue.
Let me quote from the delusory nomination document:
Page 10--``Water quality suffers from sediment, nutrient and biocide
runoff from UNSUSTAINABLE AGRICULTURE PRACTICES. Surface and
groundwater extraction for irrigation negatively affects aquifers and
stream flow. The results of these changes are dramatic and will prove
catastrophic to delta communities and the Big Woods ecosystem alike
without concentrated attention to the GOALS AND OBJECTIVES that form
the CORE PRINCIPLES OF THE NATIONAL BLUEWAYS INITIATIVE.''
Page 15--``Many of the near and mid-term goals proposed in this
nomination will be achieved through the work associated with the
achievement of the AGO goals.''
Page 16--``Agricultural practices, good or bad, have the biggest impact
on the Watershed's environment.''
Page 18--``The Coalition's central commitment and goal is to develop a
conservation framework for the Watershed that implements a multi-level
strategy for achieving this vision.''
Goals are outlined:
Page 19--``Habitat short-term (1-3 years, 4a.) Establish minimum 180,
wide vegetative buffers along ALL SURFACE WATER.'' (NRCS)
Page 20--``Agriculture Mid-term (3-7 years, 1) Complete enrollment of
30 percent of eligible cropland into conservation programs.'' (NRCS)
Page 21--``Hydrology Short-term (1-3 years, 3b.) Control encroachment
of HUMAN ACTIVITIES into the existing floodplain.'' (USACE)
Page 21--``Hydrology Mid-term (3-7 years, 1) Complete reduction of on-
farm, consumptive water use by 15 percent using irrigation efficiency
practices.'' (NRCS)
``(3,a.) Setback levees to RESTORE HISTORIC FLOODPLAIN HABITAT.''
Page 24--``DESIRED OUTCOMES--The success proposition for the White
River Watershed National Blueway relies on the ability of the Coalition
to DELIVER OUTCOMES that (1) achieve the objectives of the AGO pilot
project as detailed in this section, and (2) translate the qualities of
the partnership to the ENTIRE WATERSHED through strategic recruitment
and management of additional Coalition members.''
Page 28--Of six dams in Arkansas, that ``have had a profound effect
both in their immediate vicinity and throughout the entire Watershed.''
``The city of Batesville now owns all three dams and beginning in 2004
they were retrofitted to generate electricity. These dams have no flood
control capabilities and hold back a relatively shallow pool of water.
THE MAJOR IMPACT OF THESE STRUCTURES IS REDUCED FISH PASSAGE.''
The devil is normally in the details and while the designation has
an attractive outer shell, the details are troubling and some of the
wording is problematic. Let's summarize how the nomination is
structured and what it intends to accomplish. The executive branch
issues an initiative, AGO, and thereby his appointee, the Secretary of
the Interior, also a member of the executive branch made a designation
of the White River to meet a vision and goals brought forth through the
Presidential initiative.
Secretarial Order 3321 establishing the National Blueways System,
in section 3 claims authority through various sections of United States
Code and Law and says, ``The bureaus within Interior have a broad
panoply of legal authority to carry out their respective missions that
support enhancing river recreation, undertaking river restoration, and
pursuing river protection initiatives to pass on healthy rivers to
future generations.''
Section 7 of Secretarial Order 3321 says thusly, ``Nothing in this
Order is intended to authorize or affect the use of private property.
Nothing in this Order is intended to be the basis for the exercise of
any new regulatory authority, . . .''
The nomination identifies agriculture to be as currently practiced,
``unsustainable agriculture practices''. Irrigation is found to
negatively impact the watershed. Continuation of current practices is
deemed to be catastrophic and the only salvation is found in the goals
and objectives that form the core principles of the initiative known as
National Blueways. So we have the promise of unintended consequences to
fulfill the following goals based upon what was identified
(agricultural and irrigation) to be the problem.
Those goals include that a minimum of 180 foot buffer be
established along all surface water. This means not just the White
River itself but as well all tributaries of rivers, creeks, streams and
ponds or lakes. This area includes places cattle and livestock water
which would be fenced from their source of water.
Another goal is to complete enrollment of 30 percent of eligible
cropland into conservation programs. There is no consideration of the
need to produce food for humans and livestock, only a desire to
eliminate crop production. Of course, another goal listed is to control
encroachment of humans into the existing floodplain. Then again,
another goal is to restore historical floodplains further restricting
human interference into the floodplains. Did you note I brought forth
the fact that Arkansas is 80 percent owned by private property owners
that might object to being told not to go onto their hard earned
property?
More goals were to reduce on-farm irrigation use by 15 percent
while a study indicates Arkansas will need to increase its water use by
13 percent over the next few years. This contradicts what we need to
have to sustain life over the term of these goals. In truth, the
desired outcomes listed in the nomination indicate how this is
determined to be possible. In the mandate to deliver outcomes and
objectives of the AGO, there will be strategic recruitment and
management of the right type of partners. The key word is
``management'' as relates to additional partners. Let me illustrate how
this is done. There were three elected officials nearby that signed
onto the nomination. I called the two mayors and the one county judge
to inquire how they even knew this was happening. Each of them had a
project or trusted contact that encourages them to write the letter of
support. The enticement was the hope they were given for additional
money to work on the slated projects in their area. That is how they
would know the designation was in the works while I, with the river
running through the middle of my county, would not be aware of the
possibility. Those others were ``managed'' to come along and support
the initiative.
As much as any of this, I am concerned about the literal disregard
for human needs as relates to the discussion about the three dams in my
county. The dams are determined to have no impact other than the fish
passage. The nominees apparently forgot that the vast majority of the
citizens of Independence County, population 36,647, get their water
from the reservoir formed by the dam at Batesville. Also, all of our
industries in Batesville receive their water from that source as well.
Couple this with wanting to reestablish historical floodplains and no
recognition of human needs and you can see why this is not a grassroots
generated document. In fact, that one fact is the very reason local
input should be paramount before any designation was developed.
As county judge, one of my main responsibilities is the road system
of the county. This requires motor graders turning gravel in the
roadbed, plowing ditches, putting out prime oil for surfacing with
asphalt products. All this is necessary for the public to travel upon
these roads. Am I to think that the needs of the public within the
watershed would be unraveled by frequency mandates for blading instead
of need? The very function of local government could be disrupted for
basic services due to more permits required or some review process each
time you needed to blade a road.
It is my belief that such edicts as ``AGO'' and the National
Blueways Order circumvent the separation of powers, upon which our
government was founded, as to be necessary for it to be a government as
seen by Lincoln in his Gettysburg Address, ``of the people, by the
people and for the people''. I fear that the continuation and
toleration of executive authority through their appointees, such as
this issue, without purview of legislative process and transparency,
will lead to continued disembodiment of our people and our government.
No process should be allowed to be enacted without local involvement
and input and then the legislative action of Quorum Courts, State
Legislatures and Congress for these issues that have a local and
national impact.
I wish to close with a few local examples just recently brought to
my attention. A local grocer has 80 acres in a rural area upon which he
placed three adult hogs and a few piglets. There are no county
ordinances restricting this activity. He had a visit from a State
agency that required a few layers of red tape to finally resolve that
he could use his property in that manner. We have had in our area of
the State in more than one county, several small gravel pits that are
seldom used, closure orders from a State agency due to not having a
permit. These are privately owned and used with no impact to their
neighbors. Another community cleanup was ongoing by burning a couple of
old buildings, build before any chemical treatments were used in
processed lumber, attended by local officials and fire departments, and
a State agency delivered a complaint upon that group. These were all
within the watershed of the White River and can you imagine what
unintended consequences could occur with a national recognition?
Private property rights are important to us in Independence County
and we support voluntary conservation efforts wholeheartedly. We stand
adamantly against the potential of involuntary conversions of private
property due to executive edict. We founded a nation to deliver us from
a king, how sad we could see this type action result in kingdoms being
formed here in our county. There should be community driven
conservation efforts and local decisionmaking, not mandates without due
process of government.
Mr. Chairman and distinguished members of the committee, I thank
you for the chance to be a part of the ``due process'' of true
governance.
______
Mr. McClintock. Thank you for your testimony.
Our next witness is from Popular Bluff, Missouri. Mr. Eddy
Justice for 5 minutes.
STATEMENT OF EDDY JUSTICE, POPULAR BLUFF, MISSOURI
Mr. Justice. Thank you, Mr. Chairman, for the opportunity
to come and testify in front of this committee. I also want to
thank our Congressman, Mr. Smith, for the work that he has done
in fighting this, because it is the will of the people in our
district that this not take place.
Earlier I was watching the Committee on Natural Resources
where the Secretary of the Interior, Sally Jewell, was
commenting. And the Congressman from Utah asked her what her
plans were in regard to working with local communities and
working with people on the ground as these orders went forward.
And she said that she gave her commitment to work with the
people on the ground as she went forward, as well as to follow
the law. I hope that this is true.
I hope that she will keep her word. Because if she does
coordinate with people on the ground, she will not be following
the example of her predecessor, Mr. Salazar, who signed this
order, never once, that I have any knowledge of, came to the
White River watershed, never once held a town hall meeting
there, never once had interaction with county commissioners. I
know of at least 16 counties in this watershed that have
signatures from county commissioners saying that they did not
have a single clue this was going to happen, and they would not
have supported it if it had, and they have sent letters saying
so.
There was a news release by the Department of the Interior
on January 1, 2013 that said that this initiative is part of
President Obama's America's Great Outdoors initiative, and was
established as a community-driven conservation and recreation
agenda of the 21st century. There have been rumors that this is
a collaborative effort. There have been rumors that this is a
cooperative effort. I haven't seen it. Wouldn't that require
maybe some announcement in a newspaper, or with a TV or radio,
or town halls, or some way getting the input and cooperation of
local people? We have not seen it in these counties.
The residents of this watershed deserve better. Our
economy, in large part, has been based on recreation and
tourism and in cattle farming and in row crop farming. None of
this is possible without these waterways. And yet, we have, in
the past, had the Ozark National Science Riverway in part of
the Current River, which is a contributor in the watershed to
the White River.
At least with the Ozark National Scenic Riverway, Congress
acted. And they put this in place. But if you look at what that
order looks like, and what has happened since with the
regulations, with what the Department of the Interior has done,
they are unrecognizable. And that is what the people in our
area are concerned about. They are concerned about this being
the first step of the Department of the Interior coming in and
controlling our access to our river, our size of horsepower,
the access we have for our cattle, the access we have for our
entertainment and recreation through boating.
The general management plan of the Department of the
Interior over the Ozark National Scenic Riverway has increased
regulation on us and is about to do it again. They have a plan
that is about to come out that is going to restrict us to a
point that it could cripple our economy up and down the Current
River in a way that would probably be unrecoverable. That is
the kind of regulation that we are seeking to avoid. That is
the kind of regulation that we cannot afford.
We, as the people in this area, have invested our lives,
invested our children's future, invested everything we have in
what is in this area. And it is very frustrating for us to have
a controlling, nanny-type agency of people who probably have
never even visited our area, trying to come down and tell us
and regulate us to a point where our businesses will no longer
be viable, our future for our children to recreate there and
have homes there and have businesses there could no longer be a
possibility.
Not only should this declaration be rescinded or put on
pause, it needs to be taken away, and it should never come back
again. There are rumors and accusations that the Department of
the Interior is looking at doing 25 more of these over the next
5 years. If the people in these other 25 areas are treated like
we have been treated through this designation with no say
whatsoever, as if they know what is best for us, then I feel
sorry for them, and I think they should stand up and fight just
the way we are.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Justice follows:]
Prepared Statement of Eddy Justice, Popular Bluff, Missouri
My name is Eddy Justice and I am a resident of Butler County in
southeast Missouri. I have been the owner of Eddy Justice State Farm
Insurance Agency since 1999. I am an avid user of the Current River,
part of the White River Watershed, for recreation, and I boat and camp
there many times throughout the spring, summer and fall months. I
currently am renting property to use on the river and am looking to
purchase property there in the near future. I am representing myself in
my testimony today.
I am here today to testify before this committee in regard to the
designation of the White River National Blueway by the Department of
the Interior. Thankfully, due to pressure from many concerned citizens
of the affected area, Congressman from Missouri's 8th District Jason
Smith, U.S. Senator from Missouri Roy Blunt, and other Members of
Congress from Arkansas, this designation has now been rescinded.
There is a long list of reasons why this step back by the
Department of the Interior is a positive move, but I will address only
two here today.
In a press release issued by the Department of the Interior on
January 9, 2013, the statement was made that ``The initiative is part
of President Obama's America's Great Outdoors Initiative to establish a
community-driven conservation and recreation agenda for the 21st
century.'' This is just one of many insinuations and statements that
have been made to me and others across the affected area that the
Blueways Designations was a collaborative effort that included local
input.
To the best of my knowledge, not one single townhall meeting was
held to gather local input. Not one request was issued for public input
regarding this designation. Not one representative or letter was sent
to any county commissioner in the affected area, advising them of the
plans by the DOI to implement this designation.
The people of the affected areas, whether business owner,
recreators, land owners, residents, employees, employers, or farmers,
deserve to have a say in whether or not they want their home to be
designated one way or the other by a Federal agency.
County Commissioners are elected to handle the business of these
effected counties. How can they effectively do so when they are not
even notified of these actions by the Department of the Interior? This
is why at least 16 counties in Missouri alone have had commissioners
sign letters to Secretary Salazar requesting the designation be
rescinded.
The failure of the Department of the Interior to bother with
obtaining local input while claiming to have issued this designation
after having collaborated with local governments and organizations is
irresponsible at best and at least hints at dishonesty and possible
ulterior motives.
Another issue that I would like to address today is the fact that
Federal agencies that are imposing these designations are doing so
without any oversight from elected officials. These designations are
being imposed arbitrarily, unilaterally and without representation.
The fact that the Department of the Interior can impose these
designations without having to get the approval of Congress proves it
is arbitrary, as well as the reality that the power they are allowed to
wield is unlimited. We have seen this in the past with the Ozark
National Scenic Riverways imposing harsh restrictions on access to the
Current River and strict guidelines for use of the river while
attempting to impose it without the input of the local residents who
depend on the river for their very livelihood.
There are very few, if any, industries in the area existing in this
watershed that are not affected directly by regulations imposed on our
waterways. The Tourism Industry and the Timber Industry alone are
dependent on the waterways so drastically, that further regulation on
them would be detrimental at best and catastrophic at worst. I have
many customers in my insurance agency that, without these industries,
would not be able to maintain their businesses and incomes.
We all know of freedom loving folks from our past that were upset
about being taxed but having no say in the implementation of those
taxes. There are many in southeast and southern Missouri that believe
we are now being regulated without representation. With this kind of
unmitigated regulatory activity by Federal agencies in the past, it is
very clear why local citizens are opposed to any further designations
or groundwork for further regulatory activity without local input and
without the oversight of elected officials.
There has been word the Department of the Interior is reviewing the
idea of Implementation of Blueway Designation in as many as 25 other
locations over the next 5 years throughout the United States including
the Yellowstone River Watershed. It is my opinion and testimony that
any implementation of regulation or designation without local input and
consent is inexcusable and further proof of the attitude Federal
agencies have--believing they know better how to manage local business
and activity than those who live and work in the areas affected and
actually have invested their lives to better themselves and the area
they live in.
______
Mr. McClintock. Thank you, Mr. Justice. To our witnesses
and to the audience, I apologize. We are required to break here
in order to attend to business on the House Floor. That
business is likely to take, I would think, at least 45 minutes.
So we will reconvene some time--hopefully not long--after 2:15.
I thank you for your indulgence. It is an occupational hazard
with afternoon hearings around here. But the committee will
stand in recess until the call of the Chair at some point after
2:15.
[Recess.]
Mr. McClintock. The committee will reconvene. The Chair
thought it had promised not later than--or not earlier than
3:15, but staff informs me I actually said 2:15. So I guess we
are covered on all of that. And again, I apologize to the
witnesses as well as to the audience members for the
interruption. The Good Lord willing and the creek don't rise, I
don't think there will be any further interruptions.
We had left off with Mr. Sutton Bacon to begin his
testimony. And again, thank you for your patience, welcome to
Washington, and go for it.
STATEMENT OF SUTTON BACON, PRESIDENT AND CEO, NANTAHALA OUTDOOR
CENTER, BRYSON CITY, NORTH CAROLINA
Mr. Bacon. Thank you, Mr. Chairman, Ranking Member, and
members of the committee. Thank you for the opportunity to
testify today. My name is Sutton Bacon. I am the CEO of the
Nantahala Outdoor Center. And I am here to offer insights about
how programs like the National Blueways system can properly
function, primarily through a small business lens.
As a background, NOC is the largest outfitter guide company
in the United States. We operate in 12 national forests and
parks, and we help over 1 million Americans experience public
lands and waterways each year. To put that in perspective, our
guests paddle enough river miles each year to travel to the
moon and back twice.
I am also a small business owner. I employ 250 full-time
employees and have over 1,000 seasonal employees on my payroll
right now. We are the largest employer in our region. And I
know firsthand about the economic and regulatory challenges
that small business owners face. We are located high in the
mountains of western North Carolina. And like so many other
small, rural communities, our economy has suffered immensely
through the recession. Plus, 88 percent of our county is
federally owned. And one might say that our current economic
situation is exacerbated because of these large Federal land
holdings that diminish our tax base.
However, nothing could be further from the truth. We are
located in one of the most conservative congressional districts
in the State of North Carolina, and we proudly cling to a set
of strong mountain values, such as hard work, honest
communication, and family values. And central to our values is
stewardship of our lands and waters.
Our community fully understands that outdoor recreation is
the pathway to a growing and sustainable prosperity, one that
is rooted in an experience-based economy, not an extraction-
based economy. It can't be outsourced overseas as long as the
health and protection and integrity of our natural resources
are maintained. These jobs and economic impact will never go
away. For example, on the Nantahala River, it alone is an $85
million-per-year industry, sustaining over 1,000 full-time
jobs. In fact, it directly supports over 20 percent of the
workforce in our community.
We are the story about rural economic development. And to
further enhance these economic dividends, we have created a
regional watershed partnership, including the outfitter guide
community, the Forest Service, Duke Energy, the Eastern Band of
Cherokee Nation, local government, private land owners,
businesses of all stripes, local universities and community
colleges, non-profits, and user groups.
We are investing mostly private dollars in fundamental
recreation infrastructure, implementing a cooperative marketing
plan around our rivers and lakes, hosting national and
international events in paddle sports and fishing, and we are
establishing a 10-year community vision for our waterways.
Drawing from our mountain values, we have shown that diverse,
and even competing interests, can be overcome by earnest dialog
and cooperation. And all of this is happening solely because of
our own initiative in a bottom-up effort to improve our
community.
As such, we are precisely the kind of community and diverse
willing stakeholder group that could benefit from future
Federal recognition programs such as the National Blueways. We
would absolutely, in our region, cherish the recognition the
blue ribbon and especially the brown DOT highway sign that we
could put on our interstate.
I believe there are opportunities for the Federal
Government to create tools that can engage local stakeholders
and support a locally determined vision, since we all agree
that community-based leadership promotes better management of
our natural resources than distant and sometimes problematic
bureaucratic intervention.
As such, these voluntary partnerships can be heralded
through programs and branding programs like the Blueways that
support local communities just like ours, who are dedicated to
using their waterways to improve quality of life, create jobs,
improve property values, and foster healthy, more active
families.
I would suggest to the committee that efforts like the
National Blueways system don't just promote natural resource
ecosystems, but also the ecosystems of rural, economic
development. Most of the $85 million we generate on the
Nantahala flows right back into the small towns where we live
and work, supporting far more than the 1,000 people we employ
directly.
I appreciate the opportunity to share my testimony with you
today. Thank you.
[The prepared statement of Mr. Bacon follows:]
Prepared Statement of Sutton Bacon, President and CEO, Nantahala
Outdoor Center, Bryson City, North Carolina
introduction
Mr. Chairman, Ranking Member Napolitano, and members of the
committee, thank you for the opportunity to testify before you today.
My name is Sutton Bacon, and I am the Chief Executive Officer of
Nantahala Outdoor Center. Established in 1972, NOC is an outdoor
recreation company located at the intersection of the Appalachian Trail
and the Nantahala River in the Nantahala National Forest in Swain
County, North Carolina. Originally a roadside inn, the company has
evolved into one of the largest outdoor recreation companies in the
Nation. We are also one of western North Carolina's largest employers
with approximately 250 full-time employees and over 1,000 employees
during peak season.
Over 1 million guests visit NOC annually to embark on a diverse
collection of over 120 different itineraries, to learn kayaking at
NOC's world-renowned Paddling School, to travel abroad with NOC's
Adventure Travel program, to shop at one of our LEED-certified flagship
retail stores, or to enjoy NOC's resort amenities including our three
restaurants and multi-tiered lodging. Each year, NOC guests paddle over
1 million river miles on Federal lands, enough for two voyages to the
moon and back. NOC has recently been recognized as ``The Nation's
Premier Paddling School'' by The New York Times, ``Best Place to
Learn'' by Outside Magazine, and as ``One of the Best Outfitters on
Earth'' by National Geographic ADVENTURE. Twenty-two Olympians and two
Olympic Gold Medalists have called NOC home.
Through our programming, we strive to educate and engage adventure-
seekers through dynamic, world-class instruction and tours on some of
the world's most beautiful whitewater rivers and landscapes. We are
committed to sharing our passion for the outdoors and our penchant for
exploration with our guests. Our employees share a common vision of
keeping NOC a dynamic, enjoyable, and successful place to work and of
participating actively, considerately, and sustainably in the
communities in which we operate. We firmly believe in the triple bottom
line of people, planet, and profits.
My testimony today will discuss how public lands and waterways
offer a pathway to an economic prosperity in the rural communities of
western North Carolina. I will articulate how my company and a diverse,
local stakeholder partnership have come together to protect and develop
public access to our region's river system. I will also express support
for the river protection and recreation-related elements of the
National Blueways System. And finally, I will suggest that the model of
cooperation between private and public entities found in our region is
worthy of recognition and even replication in the rest of the country.
public-private partnerships and rural economic development
NOC is located high in the rugged mountains of western North
Carolina in a small county with a population of 14,000 and a county
seat of only 1,400 residents. Like so many other small, rural
communities, our economy has suffered immensely through the recession.
We continue to suffer from the loss of traditional manufacturing jobs
to international outsourcing, as textile, garment, and furniture plants
continue to close. Our housing and construction industries have
collapsed. And, Swain County suffers from one of the highest
unemployment rates in North Carolina (19 percent) and an equally
disturbing rate of poverty (22 percent). A recent study indicated that
20 percent of Swain residents face ``food insecurity,'' in other words,
not knowing from where their next meal would come.
Approximately 88 percent of Swain County is federally owned and
managed, the majority of this land included in Nantahala National
Forest and Great Smoky Mountains National Park. Some might say that our
current economic situation is exacerbated by these large Federal land
holdings diminishing our tax base. However, nothing could be further
from the truth. In fact, our small community has fully embraced the
notion that our public lands and waters are the pathway to a growing
and sustainable prosperity--a type of prosperity that cannot be
outsourced overseas and is rooted in the value of experiencing these
places directly.
Swain County's new economy is an experience-based economy. Whereas
extraction and manufacturing industries have come and gone, our public
lands boast a wealth of waterways, trails, and recreation areas, making
Swain County a popular destination for outdoor enthusiasts. In fact,
while our local manufacturing base continues to contract, the region's
outdoor-based tourism economy has seen exponential growth, as has
interest in tourism re-development, the enhancement of existing public-
private tourism product, and the utilization of tourism-related natural
resources in an environmentally sensitive manner. Human-powered outdoor
tourism is truly the backbone of our future.
Our community recognizes the importance of activating public-
private partnerships with our natural resources to enhance rural
economic development. We enjoy a unique collaboration amongst diverse
stakeholders such as the outfitter-guide community, local business
leaders, the U.S. Forest Service, Duke Energy, American Whitewater, the
Eastern Band of the Cherokee Nation, tourism development authorities
and local governments from seven counties, the North Carolina
university system, local community colleges, regional destination
marketing organizations, and the Southwestern North Carolina Planning
and Economic Development Commission. These diverse organizations work
together every day to share the region's natural resources with
millions of residents, visitors, students, paddlers, hikers, and
bikers; to meet the energy needs of our region; and to maintain our
forests' and rivers' healthy ecosystems. Our collaboration is based on
trust, mutual respect, a spirit of compromise, open communication, and
alignment.
There are numerous examples of how this stakeholder group has
worked together for the benefit of our community and our user groups,
from a decades-long FERC relicensing project that preserved consistent
water flows on the Nantahala to a successful bid to host the 2013 World
Freestyle Kayaking Championships, to collectively mitigating severe
drought conditions to participating actively in a new forest planning
process. The impact of our continual collaboration around the
management of our public lands and waters guides the investments that
public and private enterprise make in our communities and contributes
to the branding of our region as a top destination for outdoor
enthusiasts.
At the national level, it is easy to recognize the enormous
economic impacts of outdoor recreation. According to a recent study by
the Outdoor Industry Association, Americans spend $646 billion on
outdoor recreation every year. This is twice as much as they spend on
pharmaceuticals or cars. Outdoor recreation creates $40 billion in
Federal tax revenue and $40 billion in State and local tax revenue.
Outdoor recreation providers, retailers, and manufacturers directly
employ over 6 million Americans. In North Carolina alone, outdoor
recreation generates $19 billion in consumer spending and supports
192,000 jobs.
The national and State numbers are so staggering that they are, in
some ways, hard to grasp. So, what does that mean at a local level, in
the rural communities of western North Carolina? The direct economic
impact of tourism and recreation in our seven-county region stands at
$663 million. The region's four primary rivers--the Little Tennessee,
the Nantahala, the Oconaluftee, and the Tuckaseegee--include one of the
Nation's three most popular rivers for whitewater paddling and
commercial rafting, the most utilized competitive whitewater racing
venue in the United States, a Trout Unlimited ``Top 100 Trout Stream,''
one of the most popular float trips for young children in the
Southeast, and a river that generates over 850,000 fishing permits
annually. Beyond that, the rivers also provide opportunities for
backcasting fishermen, relaxing tubing trips, and wildlife viewing for
residents, visitors and second-home owners.
Even more locally, NOC commissioned a study in 2008 from Western
Carolina University to quantify the economic impact of the Nantahala
Outdoor Center and public outdoor recreation on the Nantahala River
alone. The researchers calculated that the direct annual economic
impact from the Nantahala was $62 million with another $23 million of
indirect impact, for a total annual contribution of over $85 million to
our local economy--while supporting over 1,000 full-time jobs in our
community. By comparing that number to the total workforce in Swain
County, it can be said that over 20 percent of Swain County workers are
employed due to the outdoor recreation economy.
None of this economic and civic revitalization would happen without
our cherished public lands and waters. Our guests travel from all over
the world to experience our mountains, rivers, and forests in a direct
and meaningful way. The jobs created by using our natural resources to
provide experience rather than extraction cannot be outsourced. As long
as the health and integrity of our lands and waters are maintained,
these jobs will never go away.
heralding the water-based recreation economy in western north carolina
Our situation in western North Carolina is exactly the type of
locally driven vision the National Blueways System is designed to
recognize and support. As noted before, our region boasts a strong and
diverse stakeholder partnership, and this partnership works closely
with Federal and State agencies to mange and promote these resources.
While competing interests like power generation, steady lake levels,
commercial rafting, guided fishing tours, conservation, public access,
and economic development can sometimes work against each other, our
mutual trust and willingness to compromise help us deal with difficult
issues. Altogether these compromises make our region a more desirable
place to live and to visit.
Managing resources and compromising in the present moment is one
thing. But more importantly, our stakeholders are able to collaborate
on a long-term vision for the region. We feel like western North
Carolina should be the Nation's premier human-powered outdoor
recreation destination. We are investing in our reputation and our
tourism product. For example, we have committed over $1 million to host
the 2013 International Canoe Federation Freestyle Kayaking World
Championships so we can reinforce the Nantahala River's reputation as a
world-class whitewater resource. We are also committed to marketing the
region as one of the Nation's best fishing destinations, hosting the
U.S. Fly Fishing Championships in 2011 and organizing seven national
fishing tournaments throughout the year with over $70,000 awarded in
prizes.
Perhaps most importantly, Duke Energy is providing over 50 new
recreational enhancements in the western North Carolina area within the
next 5 years including many new river access points. These access
points, especially those on the Little Tennessee and the Tuckaseegee
Rivers, will allow use of these rivers to grow with improved boat
camping sites, fishing trails, and wildlife viewing areas. These
investments in fundamental recreation infrastructure promise
opportunity to businesses and entrepreneurs willing to provide guiding
services or other trip amenities to visitors of these new resources.
These new resources should provide opportunity for more businesses to
grow, and they should help draw new visitors into the gas stations,
restaurants, lodging, and retail stores in our region.
As you can see, the outdoor recreation economy is a sustainable
economy in our region. Not only do we collaborate to share the benefits
of our rivers and lakes, but also we recognize the importance of
investing in them, marketing them, and enhancing them at regular
intervals. Here in the Smokies we are lucky: we have the tools,
resources, and willingness to communicate about our natural resources.
Not every river in the country has what it needs to leverage its
waterways for economic growth. That is where the National Blueways
System comes into play. The National Blueways System is about the power
of a locally determined vision for a waterway. In western North
Carolina, our collective local vision is the primary voice in the
management of our natural resources, but that's not the case
everywhere.
the importance of the national blueways system
We all know that outdoor recreation is a major component of our
economy. Much of the $646 billion in annual direct consumer spending is
generated by 12.4 billion outdoor outings taken by 141.9 million
Americans, many of these on public lands and waterways. Since most
Americans live within a mile of a river or a stream, many of these
outings take place on or beside a river. Growing participation
indicates that the outdoor economy is flourishing. According to the
Outdoor Foundation, participants have increased by 7.5 million since
2006, and Americans are enjoying the outdoors more and more.
In fact, according to the same study, kayaking in all of its
forms--whitewater, touring and recreational paddling--grew at over 10
percent each year from 2009 to 2012, and fly fishing participation grew
3 percent on average. Poised to capitalize on the surging growth of
paddlesports participation around the country, the National Blueways
System can even more firmly connect Americans with water-based
recreational opportunities. The program fosters voluntary partnerships
and brings together local stakeholders to create a locally driven
vision for these natural resources. Community-based leadership will
promote better management and increased use of the rivers and lakes
enjoyed by millions of Americans. Recognizing waterways as Blueways
will also provide a key rallying point for local communities to
continue their stewardship of their local natural resources, ensuring
clean water, healthy and active outdoor recreation, improved quality of
life, higher land values in adjacent areas, as well as better economic
and community prosperity.
I applaud the efforts of the Department of the Interior and
Secretary Jewell; asking local stakeholders to collaborate and create a
comprehensive plan for their river systems makes more sense than
dictating it to them. As we have shown in western North Carolina,
diverse and even competing interests can be overcome by earnest dialog
and cooperation. We recognize that we are all trying to maximize the
amount of value we can get out of our rivers and lakes, and we all know
that we can do so while preserving their productivity, environmental
integrity, and inherent beauty through smart resource management.
conclusion
In these trying economic times, it is clear that Americans need
more than ever the physical, emotional, and psychological benefits that
human-powered outdoor recreation provides. Another Outdoor Industry
Association research project showed that 80 percent of Americans feel
that they are happier, have better family relationships and less stress
in their lives when they engage in outdoor recreation. Anecdotally,
during the recession, we witnessed more hikers pass through NOC on the
Appalachian Trail than we had seen in years.
Our own internal research over the last 40 years indicates whenever
there is economic uncertainty or a precipitous rise in gas prices, our
guest numbers increase. This affirms the importance of outdoor
recreation during these difficult times that our country faces. We take
this charge seriously and appreciate our guests' confidence in our
ability to deliver these authentic outdoor experiences. We also take
seriously our ability to create jobs and positively impact rural
economies in need. The jobs we are creating through the outdoors can
never be outsourced so long as we have the kind of open spaces, healthy
forests, free-flowing rivers, and recreation infrastructure that the
Blueways initiative recognizes.
I truly appreciate this invitation to speak with you today. Thank
you for your attention, and I would be pleased to answer any questions
you may have.
______
Mr. McClintock. Thank you for your testimony.
And our final witness is Ms. Karen Budd-Falen, attorney for
Budd-Falen Law Offices in Cheyenne, Wyoming, to testify.
STATEMENT OF KAREN BUDD-FALEN, ATTORNEY, BUDD-FALEN LAW
OFFICES, LLC, CHEYENNE, WYOMING
Ms. Budd-Falen. Thank you very much, Mr. Chairman and
members of the committee.
[Pause.]
Ms. Budd-Falen. Is that better? All right, thank you. I am
also an attorney specializing in protecting private property
rights, rural communities, rural counties, and multiple use on
the Federal lands. Today I would like to offer to this
subcommittee legal and factual information surrounding
Secretarial Order 3321, the National Blueways Initiative.
In my opinion, this initiative has no basis in Federal
statute, and should be withdrawn. The U.S. Constitution that
set forth the very foundation of this Nation requires that the
bureaucracy can only act under the direction of Congress. There
is simply no congressional authority for the National Blueways
program.
Additionally, like its predecessor, the Great American
Outdoors Initiative, the National Blueways order was never
published or made available for public comment in the Federal
Register, nor has there been any compliance with NEPA or other
rulemaking processes. There simply has been no public input.
Now, make no mistake about it. These kind of special land
designations have very real, personal, social, and economic
impacts on land owners, rural communities, small businesses,
and local governments. This is true, whether it is a
congressionally designated area such as wilderness or wild and
scenic rivers, or bureaucratically designated areas such as a
national monument, a Blueway, lands with wilderness
characteristics, a water trail, or the brand new MOU that just
came out that creates landscape and watershed-scale
conservation demonstration areas. None of those have
congressional authority. In fact, the MOU that I talked about
cites as its only congressional authority the America's Great
Outdoors Initiative.
Although such designations are often accompanied by great
proclamations that they are going to focus and coordinate
Federal resources, or that existing land uses will be
protected, this has simply not proven to be the case. Existing
uses are almost always negatively impacted, either with
regulatory impositions, or because of radical environmental
group litigation.
While special designations will impact local citizens and
the local economy, these same communities and citizens rarely
have a voice in the management of specially designated lands
and waters. Indeed, the intra-agency National Blueways
Committee, established under Order 3321, includes no
representatives of State governments, local governments or
private citizens.
Furthermore, for these ``multi-state watersheds,'' only one
State sponsor is required. I would argue that any proposed
designation should receive a State sponsor from each and every
State affected, as well as the support of a majority of
impacted local governments. The congressional delegations and
impacted States should also have input and fair ability to
comment on proposed designations. But that is not what the
Executive order allows.
Additionally concerning is the fact that under Order 3321,
the Department of the Interior is not required to view State
and local land use management plans. Natural resource
conservation districts and counties across the Nation have land
management plans to protect its waters and its watersheds. Yet,
the Federal Government does not review a single one of these
plans before imposing an entirely new designation on top of
them.
The DOI proposes to ``realign DOI agency and bureau
activities and programs to protect and restore and enhance
natural, cultural, and recreational resources'' of a designated
river. To reassign agency purposes at the whim of the
bureaucracy is to take huge liberty with congressionally
designated purposes, flying in the face of federalism. This
order may also invite increased involvement into areas not
traditionally within the purview and jurisdiction of the
Federal Government, such as State and private lands.
The National Blueways is not precedent-setting for its
overreach or lack of statutory basis. In order to protect
ourselves from this unconstitutional abuse to power, we must
continue to demand our Nation's founding principles of checks
and balances be honored.
I would be happy to answer any questions that you have.
Thank you.
[The prepared statement of Ms. Budd-Falen follows:]
Prepared Statement of Karen Budd-Falen, Owner/Partner--Budd-Falen Law
Offices, LLC
My name is Karen Budd-Falen. I am a fifth generation rancher and
have an ownership interest in a family owned ranch in Wyoming. I am
also an attorney specializing in protecting private property rights,
rural counties and communities and multiple use on the Federal lands.
In my opinion, the National Blueways Initiative, created by Interior
Secretarial Order 3321 dated May 24, 2012, has no basis in Federal
statute, thus is an ultra virus action by the Department of the
Interior (``DOI'') and should be withdrawn in its entirely. See
Interior Order No. 3321, Establishment of a National Blueways System.
Additionally, I would urge this committee to carefully examine this and
other programs and initiatives set forth in President Obama's America's
Great Outdoors Initiative in 2010. As with the National Blueways
Program, many of these related initiatives have no basis in Federal
statute and will significantly hurt many rural communities, local
governments, local businesses and landowners.
Despite the claims in Secretarial Order 3321, local governments
such as counties and conservation districts, believe that this
Washington, DC ``collaboration'' with absolutely no sideboards
guaranteeing general public participation, general public notice and
comment or the specific involvement of ALL impacted local governments
will actually impede protection and conservation of local watersheds,
not enhance it. Neither the America's Great Outdoors Initiative nor
National Blueways Order No. 3321 have been published and available for
public comment in the Federal Register, nor has there been any
compliance for either document with the National Environmental Policy
Act (``NEPA'') or the rulemaking requirements in the Administrative
Procedure Act (``APA''). Thus, in addition to the fact that the
National Blueways System has no Congressional authorization, it has not
been through the scrutiny of a public comment period. In and of itself,
that is an additional reason for withdrawal of Secretarial Order 3321.
In addition to requesting that the subcommittee seek the withdrawal
of the National Blueways Order, I would also draw the committee's
attention to ``section 9: Expiration Date'' within Order 3321 which
allows the order to be published in Interior manuals and handbooks.
This is concerning because the policies and direction in this order can
easily survive action taken by this committee, by the DOI simply
placing the provisions of Order 3321 in a departmental manual. That is
exactly what happened with Secretarial Order 3310, the ``Wildlands
Policy.'' Although Congress was successful in getting that order
withdrawn, its effects continue to be felt because the policy itself
was simply placed in Bureau of Land Management (``BLM'') manuals and
handbooks. Thus, I would caution the committee that withdrawal of the
National Blueways Order is not enough; I recommend that the committee
further ensure that after Order 3321 is withdrawn or revoked, the
policy does not continue to be implemented through agency or department
manuals and handbooks or Memorandums of Understanding (``MOU'').
i. impacts of single focus land designations on private property,
federal land multiple use, local governments and american citizens
There is no mistake that whether it is a congressionally designated
area, such as a wilderness or wild and scenic rivers designation, or a
bureaucratically designated area, such as a national monument, land
designations have real, personal, social and economic impacts on
landowners, rural communities, small businesses and local governments.
Although it may sound good to proclaim that these designations are only
to ``focus and coordinate Federal resources,'' or ``that existing uses
will be protected,'' that is simply not the case. Designations like
National Blueways, Lands with Wilderness Characteristics, Water Trails,
National Monuments and others will impact the local citizens and local
economy, yet local communities and citizens rarely have a voice in the
designation or management.
For example, Tim Lequerica has a ranch in Oregon through which the
Owyhee Wild and Scenic River designation runs. Mr. Lequerica's
ancestors were Basque immigrants to the Owyhee River area in 1900, and
his family has worked in the livestock industry since that time. The
Lequerica private land is surrounded by BLM managed land within the
Owyhee wild river canyon. He holds a permit to graze 444 cattle in the
Saddle Butte BLM Allotment from November 1 to February 15.
The cattle in this allotment used to depend entirely on drinking
water from the Owyhee River. Although the Owyhee River was named as a
wild and scenic river by Congress in 1984, the legislation promised
that local ranches would be protected. Since ranching use of the River
has existed since the 1900s, this use could not have been harming the
river if Congress thought the river was pristine enough to still be
``wild and scenic.''
In 1998, environmental groups sued the BLM to eliminate the use of
these ranches along the Owyhee River. The litigation was not centered
on specific ranching use of the Owyhee River per se, but on whether the
BLM had jumped through the correct procedural hoops in writing a
management plan for the Owyhee Wild and Scenic River. The ranchers
intervened in this litigation because these groups were trying to stop
access to the River \1\ by livestock while the BLM prepared a new
management plan. If these ranchers had lost their access to water,
grazing would have been eliminated despite the protection given to
these ranchers by Congress. Collectively, the impacted families paid
$42,000 just to participate in the litigation.
---------------------------------------------------------------------------
\1\ As an aside, although the Plaintiffs claimed in the litigation
to be concerned about the management of the Owyhee Wild and Scenic
River, their true goal was to eliminate the ranchers' use of these
lands. Because of the devastating impacts of eliminating the use of the
River for water for livestock, the ranchers agreed that they would stop
using the River if there were alternative sources of livestock water.
The Federal District Court granted the ranchers' request to develop
alternative water, over the strong objection of the Plaintiffs. The
environmentalists wanted no water use anywhere at all, which would mean
that the ranches in this area would have been eliminated.
---------------------------------------------------------------------------
Ranchers and local governments are impacted in the same way by
Presidential National Monument designations. For example, Brian Gasvoda
resides in Chouteau County, Montana. He is the fourth generation to
raise a family on this land. In 2001, President Clinton designated the
Upper Missouri Breaks National Monument which included his unfenced
private lands and his BLM grazing allotments.
Although the Monument's Presidential Proclamation ``protects''
current land uses on National Monument land, the BLM management plan
for the Monument, pushed by litigation by environmental groups, has
caused significant changes. After the BLM finished its management plan,
in 2010, an environmental group sued the BLM seeking further
restrictions and requesting an injunction on road use and livestock
grazing within the Monument. Mr. Gasovda calculated that if grazing had
been enjoined within the Monument, his ranch would need approximately
651 tons of hay to feed the displaced livestock for 155 days. At that
time, hay cost approximately $110 per ton hauled into his area,
therefore it would have cost $71,610 to keep his livestock alive.
Additionally harming was the proposal to close many of the roads
within the Monument. Many of these roads are historic and/or public
roads. This rancher, like the others within the area, needed to keep
these roads open, in order to access, maintain and keep his private and
leased ground operational. Again, these ranchers had to retain legal
counsel to intervene in the litigation to ensure that the promise in
the Presidential Proclamation was honored. Thus, far from simply
bringing national recognition and assisting to focus Federal resources,
this designation brought legal battles and unwanted attention to those
who had already been protecting these lands for generations.
The County Commissions impacted by the Grande Staircase-Escalante
National Monument tell of the same harms. The Grande Staircase-
Escalante National Monument was created by Presidential Proclamation
6920, dated September 18, 1996. According to that Proclamation, ``All
Federal lands and interests in lands within the boundaries of this
monument are hereby appropriated and withdrawn from entry, location,
selection, sale, leasing, or other disposition under the public land
laws, other than by exchange that furthers the protective purposes of
the monument.'' However the Proclamation also stated, ``The
establishment of this monument is subject to valid existing rights. . .
. Nothing in this proclamation shall be deemed to affect existing
permits or leases for, or levels of, livestock grazing on Federal lands
within the monument.''
Despite this lofty language, Kane and Garfield Counties in Utah
have suffered severe economic damage as approximately 10,000 animal-
unit months (AUMs) of livestock grazing within the Monument have been
lost, resulting in a multi-million dollar annual loss to these local
economies. Some of these reductions occurred because with the new land
designation, local ranchers have a more difficult time constructing
and/or maintaining range improvements because of the restrictions on or
closing of roads. Additionally, livestock grazing permits that are
renewed have been appealed by environmental groups seeking to eliminate
economic use of the National Monument.
In 2004, in order to assess the economic impacts due to the
permanent or temporary non-use of five grazing allotments on the Grand
Staircase-Escalante National Monument, Kane and Garfield Counties hired
Dr. John D. Groesbeck, a professor of economics at Southern Utah
University's School of Business, to conduct an economic analysis. His
report concluded that the loss of grazing animal units within the
national monument clearly left a void in the economies of the Counties,
contributing to a reduction in taxable income generated by each County.
His report specifically concluded that the loss of approximately 4,000
grazing ``AUMs'' meant (1) a loss of taxable property values for both
Kane and Garfield Counties of approximately $745,200; and (2) the loss
of annual sales revenue for both Kane and Garfield Counties of
$165,763. He also opined that the dollars generated from sales revenue
affiliated with the range-fed cattle industry that would have typically
provided direct funding for each county and their related
municipalities in the forms of sales taxes and business property taxes
would also be lost, including an estimated $24,185 in direct
government-related funding during 2004 alone, and an estimated $264,819
during the 10-year grazing permit term.
These are real impacts to private landowners and rural local
governments from ``well-intentioned'' land use designations by Federal
agencies or the Congress. Even those continuing uses which are to be
protected and respected eventually come under attack. It is simply not
correct to say that designations such as ``National Blueways''
``headwaters to mouth'' have no real impact on local landowners and
local governments. Simply ask the local landowners and governments who
live with a Federal designation.
ii. overview of secretarial order 3321
Secretary's Order No. 3321 establishes the National Blueways
System, a program designed to ``recognize river systems conserved
through diverse stakeholder partnerships that use a comprehensive
watershed approach to resource stewardship.'' The system is intended to
provide a new national emphasis on the unique value and significance of
a ``headwaters to mouth'' approach to river management, while
encouraging stakeholders to integrate their land and water stewardship
efforts by adopting a watershed approach. To oversee the effort, Order
No. 3321 establishes an intra-agency National Blueways Committee. There
are no State governments, local governments or private citizens
appointed to or represented on the committee.
Furthermore, Order No. 3321 designated the Connecticut River and
Watershed as the first National Blueway to serve ``as a model for
future designations.'' The designation included 7.2 million acres. Less
than a year later, the Department designated the White River and
Watershed (Arkansas and Missouri) as the second National Blueway. The
White River National Blueway encompassed 17.8 million acres, 700 river
miles, 30 to 40 Arkansas counties and 1.2 million people. Yet even with
this impact and while Interior claimed that there were 31 supporting
organizations, there were only 2 listed local government sponsors and 2
business sponsors, along with 11 Federal agency sponsors. There was not
one County listed as supporting this designation. Once the local public
learned of and understood the designation, strong objections were
issued to the Department. The Designation of the White River National
Blueway was withdrawn on July 3, 2013.
Following those designations, the DOI published notice of its
Proposed Information Collection: National Blueways System Application,
See 78 Fed. Reg. 26062-26063 (May 3, 2013), announcing the collection
of public information necessary to nominate a river and associated
watershed for National Blueway Recognition. Despite the fact that 7.2
million acres across four States and 17.8 million acres across two
additional States had already been designated as Blueways, the May 3,
2013 Federal Register notice was the very first opportunity for public
comment on any aspect of the National Blueways program.
A. There is No Statutory Authority Supporting the National Blueways
Initiative
Although it may not be ``politically correct,'' it remains a fact
that the Federal administrative agencies are created by the Federal
Constitution and the U.S. Congress and that they are to only act as
directed by the legislative body. Article I, Section 1, of the U.S.
Constitution plainly states that ``[a]ll legislative Powers herein
granted shall be vested in a Congress of the United States.'' Even the
``necessary-and-proper'' clause in the eighth section of Article I
recognizes that only Congress has the power ``[t]o make all Laws which
shall be necessary and proper for carrying into Execution the foregoing
Powers.''
Additionally, to ensure that the Federal Government would not
completely subsume the other branches of government and tip the scales
of the ``checks and balances'' created by the Founding Fathers, James
Madison presented to the first U.S. Congress a series of 10 Amendments
(the Bill of Rights) to the United States Constitution. After
enumerating specific rights retained by the people in the first 8
Amendments, the 9th and 10th Amendments again spelled out the principle
of limited Federal bureaucracy. In light of that principle, the
question before this subcommittee should be whether Congress has
enacted a statute which would grant to the DOI the authority to create
the National Blueways Initiative. A review of the statutes cited in
Executive Order 3321 shows that the answer is ``No.''
Section 3 of Order No. 3321 notes that ``[t]his order is issued in
accordance with authority provided under the Take Pride in America Act,
Public Law 101-628; the Outdoor Recreation Act, Public Law 87-714; and
the Cooperative Watershed Management Program of the Omnibus Public Land
Management Act of 2009, Public Law 111-11.'' See Ken Salazar, Order No.
3321 at 2, sec. 3. The same section states further that, ``bureaus
within the Interior have a broad panoply of legal authority to carry
out their respective missions that support enhancing river recreation,
undertaking river restoration, and pursuing river protection
initiatives to pass on healthy rivers to future generations.'' While
this testimony is not an attempt to assail the ``broad panoply of legal
authority'' for individual program activities provided to the
Department, the specific authorities cited in Order No. 3321 do not
provide broad authority for the designation of a ``headwaters to
mouth'' management program that includes private, State and Federal
land.
1. Take Pride in America Act
The Take Pride in America Act, Pub. L. 101-628, 104 Stat. 4502
(1990), codified at 16 U.S.C. Sec. Sec. 4601-4605, states a purpose and
intent:
[t]o establish and maintain a public awareness campaign in
cooperation with public and private organizations and individuals--
(A) to instill in the public the importance of the appropriate
use of, and appreciation for Federal, State, and local lands,
facilities, and natural and cultural resources;
(B) to encourage an attitude of stewardship and responsibility
toward these lands, facilities, and resources; and
(C) to promote participation by individuals, organizations, and
communities of a conservation ethic in caring for these lands,
facilities, and resources.
See 16 U.S.C. Sec. 4601(b)(1). Even assuming a reading most
favorable to the Department, the statute falls well short of providing
any authority to specifically ``designate'' an entire watershed
covering vast amounts of private land. In fact, the statute does little
more than authorize the Department to instill, encourage, and/or
promote public involvement in the stewardship of our Nation's
resources. To argue that the statute provides authority for the
designation of watersheds concurrent with the Department's independent
Bureaus endeavoring to ``align the execution of agency plans and
implementation of agency programs to protect, restore, and enhance the
natural cultural, and/or recreation resources associated with
designated National Blueways'' is a significant overreach. See Order
No. 3321, at 3, sec 6(d).
2. Outdoor Recreation Act
The Department also cites to the Outdoor Recreation Act, Pub. L.
No. 87-714, 76 Stat. 653 (1962), codified at 16 U.S.C. Sec. Sec. 460k-
460k-4. That statute authorizes the Secretary of the Interior to ``to
administer such areas [i.e.--areas within the National Wildlife Refuge
System, national fish hatcheries, and other conservation areas
administered by the Secretary of the Interior for fish and wildlife
purposes] or parts thereof for public recreation when in his judgment
public recreation can be an appropriate incidental or secondary use.''
See id. Sec. 460k. Because designated Blueways do not constitute the
areas outlined by the statute,\2\ the Outdoor Recreation Act does not
provide the statutory authority for the National Blueways Initiative.
Additionally the Outdoor Recreation Act only applies to lands within
the jurisdiction of certain Interior bureaus and agencies, not to
private land.
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\2\ Pursuant to sections 460k-1 and 460k-2 of the Outdoor
Recreation Act, the Secretary is also authorized to ``acquire areas of
land, or interests therein,'' when such areas meet certain criteria,
and he may ``cooperate with public and private agencies, organizations,
and individuals,'' including accepting donations of real property. The
designation of a Blueway should not be used as an excuse for the
Federal Government to ``acquire'' private land.
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3. Cooperative Watershed Management Program of the Omnibus
Public Land Management Act of 2009
The DOI also rests its authority on the Cooperative Watershed
Management Program of the Omnibus Public Land Management Act of 2009,
Pub. L. No. 111-11, 123 Stat. 1165 (2009), codified at 16 U.S.C.
Sec. Sec. 1015-1015b. While this statute provides authority for
Interior to create and establish a watershed program that emphasizes
many of the same goals as the National Blueways System, it remains that
the program authorized by this particular statute is a specific,
separate, and distinct program that is currently operated by specific
Bureaus within the Department. See U.S. Department of the Interior,
Bureau of Reclamation, Cooperative Watershed Management Program,
available at http://www.usbr.gov/WaterSMART/cwmp/index.html (last
visited June 25, 2013). Simply, this statute does not apply to the
millions of acres of State and private lands included with a Blueway's
designation.
4. America's Great Outdoors Initiative
The most disturbing ``authority'' for the National Blueways
Initiative is its undeniable connection to a document entitled
``America's Great Outdoors: A Promise to Future Generations''
(hereinafter ``AGO Initiative''). The AGO Initiative was based upon a
Presidential Memorandum signed by President Obama on April 16, 2010.
The Presidential Order and its resulting AGO Initiative clearly defines
the administration's view toward using Federal agency fiat, rather than
Congressional authorization, to support the goals of the Presidency
regarding Federal (and private) land and resource management. The
Memorandum required the Secretaries of the Interior and Agriculture,
the Chair of the Council of Environmental Quality and the Administrator
of the Environmental Protection Agency to conduct ``listening
sessions'' throughout the United States and to prepare recommendations
on ``reigniting our historic commitment to conserving and enjoying the
magnificent natural heritage that has shaped our Nation and its
citizens.'' Although public ``listening and learning sessions'' were
held, there was no public comment opportunity pursuant to the APA prior
to the issuance of the final report in February 2011.\3\ That report
contained 111 pages and hundreds of recommendations to ``begin
implementation of this 21st century conservation agenda.'' These
recommendations are now being implemented through administrative agency
guidance documents (including Secretarial Orders, such as Order 3321).
The AGO Initiative is also the source for other, equally concerning
programs impacting private property and Federal multiple use lands.
These programs include:
---------------------------------------------------------------------------
\3\ Sally Jewell, the current Secretary of the Interior, provided
the introduction for the President at his press conference announcing
the completion of the AGO Initiative in 2011.
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a. Secretarial Order 3323: Establishment of the
America's Great Outdoors Program
On September 12, 2012, then Interior Secretary Salazar signed
Secretarial Order (``SO'') 3323: Establishment of the America's Great
Outdoors Program to ``formalize[] the Department's America's Great
Outdoors Program with a vision of connecting Americans to the outdoors
and conserving and restoring America's land, water and wildlife.'' My
concern with the SO is not with its list of lofty goals ``promoting
conservation'' but with the fact that the SO designates 20 specific
``Landscapes of National Significance;'' 28 different ``Landscapes of
Regional Significance;'' 58 different ``Rivers and Water Trails'' and
19 different ``Great Urban Parks and Wildlife Areas.'' The question
with the SO is not whether these areas should be protected and
conserved, but rather whether the private landowners and State and
local governments included in these designations even have knowledge
regarding these designations, let alone support them. It is one thing
to conduct public listening sessions at the Nation's college campuses
as was done to develop the AGO Initiative, but it is quite another to
make a wish list of 125 on-the-ground designations without public
input, including the input of affected State and local governments and
private property owners.
b. Secretarial Order 3289: Landscape Conservation
Cooperatives
Another Interior SO is entitled ``Order No. 3289: Addressing the
Impacts of Climate Change on America's Water, Land and Other Natural
and Cultural Resources.'' The only authority given for this SO is
Section 2 of the Reorganization Plan No. 3 of 1950 (64. Stat. 1262), as
amended. This SO suggests strategies to address sea level rise,
including the acquisition of upland habitat and creation of wetlands,
investment in new wildlife corridors, and consideration of ways to
reduce the Department's carbon footprint. The SO also grants additional
authority to the USGS' regional science centers, whose original mission
was to ``develop[] regional science centers to provide climate change
impact data and analysis in response to the needs of fish and wildlife
managers as they develop adaptation strategies in response to climate
change.'' The SO now has expanded that mission to ``synthesize and
integrate climate change impact data and develop tools that the
Department's managers and partners can use when managing the
Department's land, water, fish and wildlife, and cultural heritage
resources.'' This mission creep is concerning considering that with a
few exceptions, the jurisdiction for fish and wildlife management
resides with the individual States and, again with a few exceptions,
water is owned and managed by the individual States.
SO 3289 also created a program called ``Landscape Conservation
Cooperatives'' (``LCC''). Among other things, LCCs direct the BLM to
focus its land use planning efforts on ``conservation and restoration''
to make ``all lands'' more resilient to climate change and protect
wildlife corridors that cross Federal lands. There are 22 designated
landscapes in America, the boundaries of which did not include any
input from State or local governments. See Exhibit 1. In this SO, there
is also no mention of the Taylor Grazing Act or the Multiple Use
Sustained Yield Act, which actually set forth Congress' direction to
the BLM for management of the public lands.
c. New National Monument/Antiquities Act Designations
On February 14, 2010, the public learned that the Obama
administration was considering limiting the multiple use on over 10
million acres of Federal/public land, by possibly designating 14 new
National Monuments under the Antiquities Act.\4\ While the designation
of National Monuments is technically to only include the minimum amount
of land necessary to preserve America's ``antiquities,'' in recent
years, these designations have been significantly larger and have had a
severe negative impact on the tax base in many western communities and
counties. But because National Monuments are designated under the
Antiquities Act pursuant to a Presidential Executive order, there is
limited legal recourse in opposing the designations in Federal court.
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\4\ At the end of the Bush II administration, there were 100
National Monuments, located in 27 States, totaling 12,091,930 acres.
President Teddy Roosevelt established the first National Monument,
Devils Tower, in Wyoming in 1906. President Bill Clinton created the
most National Monuments, 19 plus the expansion of 3 existing monuments.
Only Richard Nixon, Ronald Reagan and George H.W. Bush did not create
any new monuments under the Antiquities Act. Should the Obama plans
come to fruition, the amount of land within the National Monument
system would almost double under one administration.
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d. Secretarial Order 3310: Interior's Wild Lands Policy
Another change from the multiple use mandate that was implemented
in response to the AGO Initiative was Interior's Wild Lands policy.
That policy required the BLM, as part of its land use planning duties,
to inventory and map lands with wilderness characteristics outside
existing designated Wilderness or wilderness study areas. These
inventories were to be ``integrated'' into [BLM's] land management
decisions. This policy was strongly criticized throughout the West and
was ``de-funded'' by Congress. On or about June 11, 2011, Secretary
Salazar withdrew the Secretarial Order.
However, although the SO was withdrawn, the BLM handbook and manual
requirements were not changed and the BLM is still complying with the
Wild Lands SO by complying with the agency's manuals and handbooks and
mapping ``Lands With Wilderness Characteristics'' (``LWC''). As a
specific Wyoming example, the BLM, as part of the Big Horn Basin
resource management plan, included a layer of BLM inventoried LWCs. So
while the requirement to ``manage'' those inventoried lands under a
specific heading called ``Wild Lands'' has been withdrawn, the
inventories of these lands as LWCs are still noted and included in
BLM's land use plans as an information layer, which will inform future
agency management decisions.
B. Assuming Arguendo There is Appropriate Statutory Authority for Order
3321, There are Significant Flaws With the Order Itself
Assuming arguendo that the Department possesses the necessary
authority for the National Blueways Program, there are significant
flaws in the program's implementation. First, the Department's
materials, specifically the ``Draft Application Instructions,'' note
that for ``multi-state watersheds,'' only one State sponsor is
required, in addition to the Federal Sponsor. Since Blueways consists
of multiple States and are ``nationally and regionally significant
rivers and their watersheds,'' it is probable that most, if not all,
designated systems will be comprised of ``multi-state watersheds.''
Given the significant impact of these designations to State and local
citizens, economies and local governments, any proposed designation
should receive a State sponsorship from each and every State, as well
as the support of a majority of the impacted local governments.
Similarly, before any National Blueway is designated, Interior should
specifically inform and allow adequate time for the entire
Congressional delegation of the impacted State(s) to respond.
Second, the DOI is not required to review relevant local land use
and management plans from impacted local governments. Many rural
counties and conservation districts have officially adopted land use or
natural resources management plans that reflect the local entities'
position on Federal and/or State land management decisions.
Furthermore, Federal statutes, including the NEPA and the Federal Land
Policy and Management Act, require Federal agencies making land
management decisions to review and discuss any inconsistency of the
proposed Federal action with local government plans. Where
inconsistencies exists, the Federal agency should take steps to
reconcile its actions with local plans. See e.g. 40 CFR
Sec. Sec. 1506.2 and 1506.2(d); see also, e.g. 43 U.S.C.
Sec. 1712(c)(9) and 16 U.S.C. Sec. 1604(a). As established by the
current SO, National Blueways designations violate these statutes.
Third, the Department's materials repeatedly note a commitment to
address and coordinate with local stakeholders. However, the
Department's materials do not define or elaborate on who or what
constitutes an applicable stakeholder. In contrast, the statute
authorizing the Cooperative Watershed Management Programs \5\
specifically identifies stakeholders and requires, where appropriate,
their participation. Example stakeholders in that case include, but are
not limited to, representatives of: hydroelectric production; livestock
grazing; timber production; land development; recreation or tourism;
irrigated agricultural production; the environment; potable water
purveyors and industrial water users; private property owners; and
local agencies with authority within the watershed. At a minimum these
same stakeholders should also be notified and included in a decision to
designate a Blueway. Additionally, the Blueways application
instructions require the identification of ``member organizations,
municipalities, agencies, and other stakeholders . . . supporting the
proposed recognition as a National Blueway.'' While broad, the
application requirements do not include the identification of
organizations, municipalities, agencies, and other stakeholders not
supporting the proposed recognition as a National Blueway. This is
unfortunate given that the Department does not provide notice and
opportunity for comment to the public at large.
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\5\ The Cooperative Watershed Management Program should not be
confused with the December 2012 MOU creating ``large-scale landscape
and watershed conservation demonstration areas.'' This MOU cites as its
authority, ``This agreement is based on existing authorities including
the President's Memorandum of April 16, 2010: A 21st Century Strategy
for America's Great Outdoors, 75 Fed. Reg. 20767 (April 20, 2010), and
various authorities within the context of the laws or regulations
governing specific programs administered by the agencies.'' The MOU
directs the nine ``Federal family'' members to coordinate the already
established watershed teams on specific ``landscapes and watersheds
across the Country.''
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Fourth, is the lack of specificity for designation. The
Department's responses to questions submitted by the Senate Energy and
Natural Resources Staff following a January 28, 2013 briefing by
Interior's Senior Advisor Rebecca Wodder state that ``the diversity of
the partnership, having a shared vision, goals and objectives, the
condition of the river and watershed, and having a strategy to
integrate land and water management actions to achieve shared outcomes
are the key elements of the evaluation, rather than the mix of public
and private land.'' The concern here is that none of the key elements
are defined, explained, or measured by any quantifiable factors. For
example, when evaluating the ``condition of the river,'' what types of
conditions make it more or less likely that a proposed Blueway will be
designated? Explanations of these key elements, including quantifiable
factors, standards, or thresholds for the evaluation of a Blueway's
nomination, must be defined prior to this program moving forward.
Fifth, following the Secretary's Order, the DOI entered into a
Memorandum of Understanding (``MOU'') with the Department of
Agriculture and the Department of the Army to ``establish a framework
for collaborative efforts to identify and create opportunities to work
together as partners to accomplish shared, compatible, and priority
conservation, restoration, outdoor recreation, environmental education,
and sustainable economic objectives in support of the National Blueways
System as a whole, and specific designated National Blueways.'' The MOU
established several objectives, including: (1) Conserving, protecting,
and enhancing the natural diversity and abundance of fish and wildlife
species, and the ecosystems upon which these species depend; (2)
restoring and maintaining the chemical, physical, and biological
integrity of the Nation's waters; and (3) Integrating and adaptively
managing the land and water resources, including agricultural and
working lands and waters, within the National Blueways System
consistent with applicable laws.
According to the MOU, compliance is to be voluntary and non-
regulatory. What is concerning is that one MOU objective is taken
directly from the Clean Water Act. See Federal Water Pollution Control
Act (Clean Water Act), 33 U.S.C. Sec. 1251 (stating the Congressional
declaration of goals and policy as the ``restoration and maintenance of
chemical, physical and biological integrity of the Nation's waters.'').
It is hard to understand how the objectives in an MOU implementing the
AGO Initiative and National Blueways can be voluntary and mandatory at
the same time.
Finally, the designation of huge watershed systems buttressed by
lofty objectives such as: ``restoring and maintaining the chemical,
physical, and biological integrity of the Nation's water'' or
``conserving, protecting, and enhancing the natural diversity and
abundance of fish and wildlife species, and the ecosystems upon which
these species depend,'' will in fact increase the regulatory burden and
scrutiny in local areas while at the same time removing local control
and autonomy. Section 5(d) of Order No. 3321 states that ``Bureaus
within Interior, to the extent permitted by law and consistent with
their missions, policies, and resources, shall endeavor to align the
execution of agency plans and implementation of agency programs to
protect, restore, and enhance the natural, cultural, and/or
recreational resources associated with designated National Blueways.''
This statement is reinforced in the Joint ``Memorandum of
Understanding,'' which states that the Secretary's Order ``directs
Interior to align the implementation of all plans and programs in
Interior with the National Blueways System.'' This ``realignment'' of
the missions of Interior's bureaus and agencies will likely have the
unintended consequence of focusing regulatory scrutiny and burden,
largely from established statutes and regulations, into the designated
Blueway area, if not by the bureau, but by litigation from radical
environmental interests. As a result, the non-regulatory program may
bring a heavier regulatory hand. Relatedly, this may serve to undermine
and replace local governmental control and administration of resource
conservation and management, with Federal agency mandates and edicts.
The Department's use of designated National Blueways, either
independently or in conjunction with other programs created by the AGO
Initiative, such as Landscape Conservation Cooperatives, should not be
used to expand the Federal Government's power into areas currently
managed by local governmental entities and beyond the Federal
Government's control.
I appreciate the opportunity to present this testimony to you. I
would be happy to respond to any questions by the committee. Thank you.
______
Mr. McClintock. Great. Thank you. Thank you very much for
your testimony, and all of you, for your attendance today. We
will now go to 5-minute questions from the Members. And the
Chair will begin with Judge Griffin.
We were told earlier that the Blueways are voluntary, it is
an open process, it is a designation in name only. Why is that
objectionable?
Judge Griffin. As long as it is truly voluntary--we
participate in programs every day that are voluntary. But the--
--
Mr. McClintock. Did you find it to be voluntary?
Judge Griffin. I apologize.
Mr. McClintock. Did your community find the designation of
the White River to be voluntary?
Judge Griffin. There was no one notified it was even
happening, so it certainly was not voluntary. It was
compulsory.
Mr. McClintock. Mr. Justice, was that your impression, as
well?
Mr. Justice. There were 16 counties that people around me
have talked to that their county commissioners had signed
letters that they knew nothing about this. So if the very
people who were responsible for the operation of these counties
knew nothing about it and signed letters to say such----
Mr. McClintock. So it is voluntary, then, in the sense that
it is imposed upon you without consultation.
Mr. Justice. To the best of my knowledge, that is the way
to say it.
Mr. McClintock. A new definition of the word, as far as I
can tell.
Mr. Justice. The only thing I have ever volunteered for is
when someone asked me if I wanted to do it and I said yes.
Mr. McClintock. We just heard testimony that this
designation would enhance recreational opportunities by giving
the river a little special recognition, that is all. What is
not to like about that?
Mr. Justice. Well, there was a letter posted on the
Department of the Interior's Web site by a lady named Debbie
Doss, the Conservation Chair of Arkansas Conservation
Coalition. She said this was like winning a beauty contest.
Well, in a beauty contest, don't you first decide to enter;
second, prepare for it; and third, want to be judged?
Mr. McClintock. But if it is simply a matter of putting
pretty signs up saying that this is a National Blueways river,
what is wrong with that?
Judge Griffin. Let me point out the wording, Mr. Chairman,
of ``limiting human encroachment into the flood plain.'' That
does not seem to be very recreational-minded.
Mr. McClintock. Limiting human encroachment into the flood
plain, well, that would include things like, what, river
rafting and fishing and probably all the stuff that Mr. Bacon's
folks do. What, exactly, do you do over there in your neck of
the woods?
Mr. Bacon. Fly fishing, rafting, kayaking.
Mr. McClintock. Well----
Mr. Bacon. Yes, sir.
Mr. McClintock. Don't you realize you are encroaching on
the flood plain in the river?
Mr. Bacon. Yes.
Mr. McClintock. And it doesn't bother you that the Federal
Government is producing a designation that could well end up
banning your activities?
Mr. Bacon. I think one key difference in our circumstance,
Mr. Chairman, than the other members of the panel is that we
operate almost predominantly on Federal land. We do not have
the same kind of private land issues----
Mr. McClintock. Let me warn you about the commercial
operators that are doing business in the Yosemite Valley and
have for nearly 100 years. River rafting rentals, bicycle
rentals, horseback riding rentals, the National Park Service is
now seeking to remove all of those enterprises from the
Yosemite Valley floor.
And, by the way, the reason that is often stated in
meetings is because these are commercial enterprises and
commercial enterprises are incompatible with the public lands.
In fact, they go to great lengths to assure us that bicycle
riding and horseback riding will still be allowed, it just
cannot be commercially provided on the Valley floor. Wouldn't a
similar policy affect your operation?
Mr. Bacon. It would.
Mr. McClintock. Well, what do you think of that sentiment,
that commercial enterprises are incompatible with our public
lands?
Mr. Bacon. I will not contest that there are case-by-case
challenges throughout the country and around the United States
where public recreation and commercial outfitting is challenged
by our land management agencies.
Mr. McClintock. Well, I think that you will find you are
taking a giant step in that direction and running athwart of a
warning often given by Ronald Reagan, which was if you get in
bed with the Federal Government, you better expect something
more than a good night's sleep.
Mr. Bacon. Point taken.
Mr. McClintock. Judge Griffin, your testimony talked about
how the White River Blueways Commission documents targeted
three hydroelectric dams owned by the city of Batesville,
Arkansas, because they reduced fish passage. Could you tell me
very briefly about those dams and what the outcome could have
been under the White River Blueway?
Judge Griffin. Each of those create a pool of water,
probably 6 to 8 feet deep. They increase the fishing area and
enhance that. But also, the critical thing is actually
irrigation water and water for the substance of people, 25,000
people, that are in that area that depend on that pool of water
for drinking water.
Mr. McClintock. Thank you. Ranking Member Napolitano.
Mrs. Napolitano. Thank you, Mr. Chairman. Mr. Bacon, your
experience as an outfitter and a taxpayer, do you think it
makes sense for the variety of Federal agencies who are engaged
in management of our Nation's water resources to better
coordinate their efforts to support local initiatives and to
maximize efficiency?
Mr. Bacon. I would say of course. I think coordination is
our single biggest opportunity when dealing with multiple
Federal agencies. I would say, most importantly there needs to
be a cultural change within our agencies to become--
specifically we deal with the Forest Service almost
predominantly, to really put the Forest Service in the
recreation business and acknowledge that recreation is a
fundamental component to its mission delivery.
So, coordination, yes. I agree with that statement. We have
to make sure that our agencies are in the recreation business,
and that we do everything on a line-coordinated approach.
Ultimately, private business, private enterprise using our
public lands is what is creating the jobs, the economic impact
that we have talked about. So our land agencies need to
facilitate that.
Mrs. Napolitano. Thank you. Well, nominations for the
Blueways are submitted by localities to the Department of the
Interior. Is that correct?
Mr. Bacon. That is my understanding.
Mrs. Napolitano. So maybe DOI didn't totally reach out to
every single aspect of those that should have been involved,
and shame on them if they didn't.
Mr. Bacon. It seems to me, without knowing a lot of the
details, that there are process issues that the Department of
the Interior needs to address.
Mrs. Napolitano. Well, hopefully this new Secretary will
take care of that.
In your testimony, sir, you state 80 percent of the county
is federally owned and managed. That is really on par with most
of our counties in the West. But in your experience, it is a
given that in a county with substantial Federal land ownership,
the economy does not have to suffer. Is that correct?
Mr. Bacon. Yes, ma'am. That is correct. We have numerous
examples in the Southeastern United States, where we operate.
We almost have exclusively all Federal lands and create
millions of dollars of economic impact. Gatlinburg, Tennessee,
for example, is a 10-square-mile island in the middle of a
Great Smokey Mountains National Park, and it generates $500
million of direct consumer spending, leveraging the national
park.
Mrs. Napolitano. So then it behooves both areas, not only
the Federal Government, but also entities that know that this
might happen, to not interfere, but rather inject into the
conversation things that they feel are important.
Mr. Bacon. Absolutely.
Mrs. Napolitano. Are there ways the working collaborative
with stakeholders, local, the State, the Federal, and, don't
forget, the partners, as you say, in business, people like you,
that a community can thrive, even when the Federal taxpayers
own substantial amounts of land in those areas?
Mr. Bacon. I think the key is alignment within
stakeholders. Whereas, many different business interests--local
interests, government interests, landowner interests--can
sometimes be in conflict, here in western North Carolina we
find common ground on rallying around the travel and tourism
industry, specifically throughout recreation component of the
travel and tourism industry. The rising tide truly does lift
all boats.
Mrs. Napolitano. And, of course, they also value the
protection of those rivers to ensure their health, and also of
the watersheds, because it is important to them and to the ag
areas.
Mr. Bacon. Absolutely. If it weren't for the protection of
our watersheds, the enhancement of recreation areas, and the
protection of our natural resources, our guests would not
recreate and come to the mountains to enjoy all of these
wonderful businesses that offer services there. Yes, ma'am.
Mrs. Napolitano. Which is a job creator. Mr. Justice, can
you give me an exact instance of a new regulation that would
have been created due to the Blueway designation?
Mr. Justice. No, ma'am, I can't, because that has not been
defined yet. But the parallel that I made between that and the
Ozark National Scenic Riverway, I think, is a good indication
of what could possibly happen.
Mrs. Napolitano. Could possibly happen.
Mr. Justice. Yes, ma'am, due to precedent. There have been
some ideas that some of the regulation of the Blueway is to
keep our cattle 180 feet away from the river. That completely
destroys our cattle industry. If you look at the Ozark National
Scenic Riverways to where the conservation department has put
boulders in front of some of the boating access points, and
they have made regulations to where you can't ride horses in
the water, completely opposite of the way that our rivers
should be managed.
Mrs. Napolitano. Well, there are some concerns about
contamination of river waters, including some of the--I would
say manure in other river run-off from agriculture. So we need
to ensure that we protect those rivers for the health of not
only the business entities, but also the communities that use
it for drinking water.
And, Mr. Chair, I reserve any balance of my time for later.
Thank you.
Mr. McClintock. We will credit you with three seconds. Mrs.
Lummis?
Mrs. Lummis. Thank you, Mr. Chairman. Ms. Budd-Falen, thank
you and welcome. Thank you for coming. The order that
designated this Blueway designation says that nomination of a
river may be done by any established stakeholder partnership.
But it does not define this term. Do you think that might allow
a far-removed, non-governmental special interest to nominate a
river, regardless of local concern or opposition?
Ms. Budd-Falen. Oh, I absolutely think that, because the
order doesn't require any kind of public input, it does not
require the agreement of the States. Specifically, it does not
include any requirement of local government knowledge. A
stakeholder could be somebody from New York City nominating the
Yellowstone River in Wyoming. And that would clearly not be
right for the people in Wyoming.
Mrs. Lummis. Now, in your testimony you mentioned that
local governments already have comprehensive land and water
conservation plans. So, my question is, what would happen to
this local planning under the Blueways implementation if the
Federal goal conflicts with local conservation plans?
Ms. Budd-Falen. The way the Blueways order is written right
now is that the local plan would be subservient and would
probably vanish. In Wyoming, conservation districts write these
local land use plans based on State statute with absolute input
of all of the people in that local area. And it is these people
that are going to really understand that watershed. Because,
clearly, a watershed in northeast Wyoming is not the same as a
watershed in southwest Wyoming.
And so, what you are going to have with these kind of
Federal designations is all of these locally carefully crafted
on-the-ground plans are going to be diminished because you have
a Federal Government, top-down, one-size-fits-all from
Washington that has not worked well for the West in the past,
and I can't believe it will in the future.
Mrs. Lummis. Ms. Budd-Falen, also in your testimony you
suggest that the non-regulatory Blueway designation can be the
basis for lawsuits. Can you explain that further?
Ms. Budd-Falen. Yes, I can. As this congressional body
knows, I have been heavily involved in looking at lawsuits from
radical environmental groups. Most of these lawsuits involve
challenges to Federal land use plans. They don't challenge the
land use plan or the Federal designation on the merits. They
challenge through some procedural process. And we have even had
testimony and information by these radical groups saying that
they are only doing this to wear down Federal land managers so
they simply do what these groups want.
These kind of designations harm hundreds of people who are
trying to make a living on the land. We have to intervene in
this litigation. We have done studies based on grazing
litigation, where the permittees have to intervene in these
groups with the Federal agencies. It can cost anywhere between
$35,000 and $100,000 for a grazing permittee to try to
intervene in litigation by an environmental group. And, as you
know, these environmental groups get their funding paid back,
in terms of attorneys fees, from the Federal Government. And I
can guarantee you that will happen with this designation, as it
has with every single other either congressional designation or
national monument designation or other agency designation.
Mrs. Lummis. So, even though the Blueways Secretarial Order
is just that, a secretarial order, is there still a threat of
lawsuit and litigation? And does it constitute a regulatory
burden?
Ms. Budd-Falen. It absolutely is a threat of litigation
because if you have a group that does not believe that the
Blueway is being managed in terms of how the Department of the
Interior designated it, because they believe that Interior
ought to consider more environmental protection or different
kinds of recreation, there will be Federal court litigation.
There is simply no reason to not litigate by these groups. And
that will absolutely harm the individuals, including the
recreationists, who are relying on that permit, or that lease,
or that ability to use that land. It is absolutely a regulatory
burden to have to defend the Federal Government, just to get
your lease or permit from the Federal Government.
Mrs. Lummis. Thank you. A quick question for Judge Griffin.
The stakeholder partnership that nominated the White River, was
it being driven more by Federal officials or local officials?
Judge Griffin. It was driven entirely by Federal officials,
in concert with programs that were going on with the local
people.
Mr. Chairman, could you indulge me one moment to address
the Ranking Member's question?
Mr. McClintock. Unfortunately, the gentlelady's time has
expired, but we may get to that in a future question.
Mr. Huffman for 5 minutes.
Mr. Huffman. Thank you, Mr. Chair. We have heard a lot
today about how this program might lead to certain things,
might be interpreted certain ways, could have certain effects
that could lead to other effects. And I would like to try to
dial this back in to what has actually occurred thus far in the
real world.
We have heard a question about potentially far-removed
NGO's and special interests could sort of parachute in and
propose designation of Blueways. Can any of the witnesses tell
me about a situation where that has actually happened, where
far-removed special interests have come into a watershed and
actually proposed a designation that was accepted by the
Department of the Interior? Can anyone identify an example of
that?
[No response.]
Mr. Huffman. How about the suggestion that this Blueways
designation could somehow preempt local plans and authorities?
Could anyone tell me an example of where this Blueway
designation has been proposed, and that has had some sort of
preemptive effect that invalidated or trumped local plans and
local authorities?
[No response.]
Mr. Huffman. How about any regulatory effect at all? Can
anyone identify any regulatory power that the Blueway
designation actually creates for any Federal agency. Anything?
Judge Griffin. I----
Mr. Huffman. Any specific--yes.
Judge Griffin. I would like to address that one. And I
believe you are an attorney by trade, Mr. Huffman?
Mr. Huffman. Yes, I am guilty of that, yes.
Judge Griffin. The thing that I see is when the Secretary
of the Interior, in section 3----
Mr. Huffman. But, sir, I want to just ask, with all due
respect, a specific answer to my question, which is can you
identify any specific regulatory power that Blueways
designation creates for----
Judge Griffin. Section three. It implies there are broad
powers existing to create the----
Mr. Huffman. Implies. Does it create any new authority?
Judge Griffin. Not that I am aware.
Mr. Huffman. Thank you. What about property rights? There
has been a suggestion that this could devalue or encroach upon
or violate property rights. Is anyone familiar with a situation
where a Blueways designation has harmed anyone's property
rights?
[No response.]
Mr. Huffman. How about water rights? Anyone lost any water
as a result of the Blueways designation?
[No response.]
Mr. Huffman. Anyone been denied the ability to build
something because it was alleged to encroach on the flood
plain? Anything like that?
[No response.]
Mr. Huffman. What about recreation? Has anyone been
prevented from recreating because of a Blueways designation or
proposed Blueways designation?
[No response.]
Mr. Huffman. I am not hearing that. There was a suggestion
that cattle might be kept 180 feet back if there was a Blueways
designation. Has anyone ever been told they have to manage
their cattle differently because a Blueways designation was
proposed?
[No response.]
Mr. Huffman. Any specifics?
[No response.]
Mr. Huffman. Any other type of access to a river or a
watershed that has been affected in any way by the
consideration or the actual designation of a Blueways?
[No response.]
Mr. Huffman. Well, it is kind of interesting that we have
had what is an entirely hypothetical discussion here today
about a program that, frankly, has been paused, even though it
has not had any of the effects that folks have raised as
concerns, but has, nevertheless, been paused so that there can
be even extra consideration given to make sure that it is
compatible with all the different stakeholders in these
watersheds. But I think there is some perspective and context
that we really need to bring to this discussion that has been
missing from a lot of the testimony that we have heard.
I just have one more question in the time that has been
allowed from the gentlelady from Wyoming. You mentioned several
times radical environmental groups. Can you identify an
environmental group for me that is not radical, or does that
just automatically get joined in to the name, there? If you are
an environmental group are you radical, or is there someone out
there in the environmental community that maybe is not radical?
Ms. Budd-Falen. Actually, I can. If you look at local
conservation groups, at groups that are environmental groups
that are local in a small area and dealing with issues on the
ground in that particular area, I do not believe that those
groups are radical. The groups that I am talking about are
groups that are national groups that, when you look at their
Web site, that they have an agenda to drive livestock grazing,
timbering, mining, and recreation off the Federal lands. And I
can actually give you a list of those, if you would like them.
Mr. Huffman. I would love to hear the ones that you would
have at least more trust and confidence in that you would
regard as non-radical.
But, in any event, I just have a few seconds left. Let me
reiterate that in California we have been working for decades
to get people out of their bunkers working together to avoid
heavy-handed regulation through these collaborative efforts. I
think it is a good thing, and I would like to see that program
brought to our State. I yield back. Thank you, Mr. Chair.
Mr. McClintock. Mr. Tipton of Colorado.
Mr. Tipton. Thank you, Mr. Chairman. I would like to be
able to enter into the record a letter from the National
Cattleman's Beef Association opposing a Blueways designation.
Mr. McClintock. Without objection.
Mr. Tipton. For many of the reasons that have been cited
for concerns that my good friend and colleague out of
California cited, they are concerned, concerned about the heavy
hand of the Federal Government coming in. Not through this
Congress, not through talking to you or talking to me, or any
other member of this committee, but by executive fiat making
these designations. And maybe we can help find a few answers to
a couple of the questions that you did pose.
When we look at the White River designation, it is in the
incorporating document for the proposed designation under the
Blueway system to be able to have a 180-foot buffer zone on
private property. Judge, would you call that a taking?
Judge Griffin. That would be a taking, yes.
Mr. Tipton. Ms. Budd-Falen, would you call that a taking?
Ms. Budd-Falen. Yes, sir, I would.
Mr. Tipton. Mr. Justice, is that a taking?
Mr. Justice. Beyond a shadow of a doubt.
Mr. Tipton. Mr. Bacon, would you consider that a taking?
Mr. Bacon. I am not familiar with it.
Mr. Tipton. OK. So the Federal Government, by executive
fiat, would set themselves up in a position to be able to come
in and designate 180 foot on either side of a river, to be able
to tell you what to do with the property. That is a genuine
threat. That is an actual taking and an impact that is going to
have a real impact on a lot of our farmers and ranchers.
Fortunately, the White River was withdrawn from consideration
as a Blueways, because the public, the people who actually live
there, stood up and said, ``We don't want this.''
You have already testified that no locals were actually
incorporated into the discussion. But we are talking about some
of the outside groups that were maybe coming in and helping to
push for a designation. Let's look at the White River, the
National Wildlife Refuge Association, the Nature Conservancy
District, Ducks Unlimited, some good groups. Not arguing that
these are bad groups. But not all of them are invested in those
areas.
In the West, Ms. Budd-Falen, in the West is water a private
property right?
Ms. Budd-Falen. Yes, sir, it is.
Mr. Tipton. Do you have State laws in Wyoming?
Ms. Budd-Falen. Yes.
Mr. Tipton. Do you have priority-based systems in Wyoming?
Ms. Budd-Falen. Yes, we do.
Mr. Tipton. Do you think it is appropriate for the Federal
Government to be able to come in and start upsetting not only
State law priority systems, but effectively taking private
property rights through designation?
Ms. Budd-Falen. No, I do not.
Mr. Tipton. You see any solutions? Do you have any comments
on that, Judge?
Judge Griffin. I am sorry, Representative Tipton.
Mr. Tipton. Do you have some comments? Do you think it is
the appropriate place for the Federal Government to be coming
in and upsetting State law, priority-based systems and private
property rights in regards to water?
Judge Griffin. Absolutely not, not when 80 percent of the
people that own land do not wish to participate.
Mr. Tipton. Do you see a problem--and is this an arrogance
typically out of this administration, assuming that everything
is community property, and that they have a right on high in
Washington, DC to come down into Arkansas and to Wyoming, to be
able to go out through our States and to be able to make
designations without passing a bill through the Congress?
Judge Griffin. I think that any designation should have its
origin only in Congress. And, thereupon, having vetting in the
proper legislative process.
Mr. Tipton. Maybe we can run through a couple of questions
here real quick, if you wouldn't mind. We are a little short on
time.
Under the Secretarial Order creating the Blueways program,
can any entity nominate? You guys have lived it.
Ms. Budd-Falen. Yes.
Mr. Tipton. Yes?
Ms. Budd-Falen. Yes. Any entity can nominate a national
Blueway.
Mr. Tipton. Mr. Bacon?
Mr. Bacon. I believe so.
Mr. Tipton. Mr. Justice?
Mr. Justice. That is what I believe it says.
Mr. Tipton. Judge?
Judge Griffin. I believe so.
Mr. Tipton. OK. Can that entity be a non-governmental
entity outside the base and not accountable to the State or
local governments? We just talked about that. Is that accurate?
Ms. Budd-Falen. That is accurate.
Mr. Tipton. No arguments back on that. Can the National
Blueway Committee composed entirely of Federal bureaucrats
designate a Blueway once it has been nominated through what
appears to be a flawed process?
Ms. Budd-Falen. Yes. There are no State or local
participants at all on that national committee.
Mr. Tipton. Any other comments on that?
[No response.]
Mr. Tipton. Great. So, Federal bureaucrats will be the
ultimate decisionmakers on tri-state areas like the 44 million-
acre Yellowstone River watershed, even though landowners, local
and State governments that manage the land as well are going to
be excluded.
Ms. Budd-Falen. That is correct.
Mr. Tipton. So the Federal Government will come in and do
this.
Well, interestingly enough, we just had a meeting earlier
today with Secretary Jewell with the Department of the
Interior. She noted that they were having a pause on the
Blueways program, a pause on the Blueways program because it is
obviously fundamentally flawed. They are going to be looking
back to be able to examine this. I would certainly like to
encourage you and encourage this Congress to stand up for State
rights, for the priority-based systems, and the water law and
private property rights of the American citizen, and not let
this happen by executive fiat.
With that, I yield back.
Mr. McClintock. The Chair recognizes Mr. Gosar of Arizona.
Dr. Gosar. Well, thank you, Mr. Chairman, and thanks for
this hearing.
What I am very disappointed in is the administration
couldn't be bothered to provide a witness today. I think we
have given plenty of testimony from both sides that we needed
to have somebody from the Interior to actually talk about the
implementation of the National Blueways program.
In my district, Rebecca Wodder has been traveling the
country basically selling folks in our district a false bill of
goods and promising Federal dollars in exchange for the
Blueways designation. That is exactly what occurred in my
State. Some well-intentioned local officials in my district,
looking for any way to get resources to preserve the
ecologically important Verde River, have expressed interest in
the program after hearing Wodder's promises. I am committed to
working with those folks on issues pertaining to the Verde
River, but I am specifically concerned about the Blueways
designation that would bring the potential burdens that it
would impose on the resource management in exchange for this
funding priority at Interior.
Ultimately, the Department must come to Congress to
authorize, as many of these guests have said. And these types
of overarching land and water management decisions are very,
very important.
Ms. Budd-Falen, I mean, trust is a series of promises kept,
right? Is that a good definition?
Ms. Budd-Falen. Not when you are dealing with the Federal
Government, sir.
Dr. Gosar. I am loving that conversation now. So tell me
what the Federal Government has actually done to uphold our
trust in the Western States? I grew up in Pinedale, by the way.
Ms. Budd-Falen. Oh.
Dr. Gosar. I am one of those Gosars.
Ms. Budd-Falen. Oh, cool.
Dr. Gosar. Yes, yes.
[Laughter.]
Ms. Budd-Falen. The Federal Government, for example,
promised that livestock grazing would not be affected on the
Grand Staircase-Escalante National Monument. There are now very
few livestock grazing permits on the Grand Staircase-Escalante,
even though the proclamation specifically protected livestock
grazing. But because the bureaucracy of simply trying to renew
permits and bring permits together, and through a series of
litigation by environmental groups, those permits have been
eliminated, costing those local governments hundreds of
thousands of dollars that recreation, even in that beautiful
area, is never going to replace.
Dr. Gosar. We haven't even started talking about the
Endangered Species Act, have we?
Ms. Budd-Falen. No, sir, we have not.
Dr. Gosar. That would have been a great one, folks, to pick
up over there, because that is implied everywhere. I mean that
has been an implication on the Federal lands, period, all the
way across the board. And it has had a disastrous effect on
economies, private land ownership, and everything else.
How do you see this, in this specific adjunct, and the way
you put things together, Ms. Budd-Falen, when you see waters of
the United States and the designation of the blue waters
particularly, how do you see those conceived basically over-
arching and taking jurisdiction from private and State, local
jurisdictions?
Ms. Budd-Falen. The problem is it happens very subtly. This
is not something that they designate and all of a sudden uses
are stopped. It is something that happens over a period of
years, as bureaucrats gain more power over the people,
particularly in the West.
I think we understand it better, because we live with
Federal bureaucracies granting everything that we do, whether
it is a term grazing permit or an oil and gas lease, or
whatever is keeping these rural communities alive. And so we
understand what it is like to have the bureaucracy, time after
time, be on top of you.
In the West now we are dealing not only with this, but with
sage grouse issues, and what happens if the sage grouse gets
listed. I did listen to Secretary Jewell's testimony this
morning, and she talked about how she appreciated the
partnerships on sage grouse. What she forgot to mention is the
sage grouse is also in litigation in front of Judge Windmill in
Idaho by Western Watersheds. And so, all of these partnerships
and no matter how good the Department of the Interior thinks
the State programs are going, it is not going to be Interior
that decides it. It is a Federal district judge--in this case,
in Idaho--because that is where the case is.
So it is not so much whether Congress thinks this is a good
idea or a bad idea. When the agencies make these designations,
what happens is that they take on a life of their own. They
totally overtake the rural communities, and then they get
litigated in Federal court by somebody we can't fire, and by
somebody who gets to dictate how we live.
Dr. Gosar. So do you have the ability to have a personal
one-on-one discussion with the Secretary of the Interior? Would
you ever be getting that opportunity?
Ms. Budd-Falen. I would love that opportunity.
Dr. Gosar. That would be nice. You won't get it. The
environmental groups get it.
But I also want to finish up. I have worked with the Nature
Conservancy in the State of Arizona. They have actually come to
the table with solutions. No isn't an answer any more. But the
Center for Biological Diversity believes that they ought to
have poets and philosophers, instead of science people. And
that is some of the things that we want to talk about. And I am
happy to verse anybody on the opposite side about when we talk
about aggressive NGO's. Thank you.
Mr. McClintock. The gentleman from Missouri, Mr. Smith.
Mr. Smith. Sure. Thank you, Mr. Chairman. Let me ask Mr.
Justice. You testified earlier in regards to the Blueways
designation on the White River area. Were there any public
meetings in Missouri that you are aware of?
Mr. Justice. I am not aware of a single meeting held
anywhere in the State of Missouri affected by the Blueway.
Mr. Smith. So, would it be your belief that it wasn't a
voluntary program for the 14 counties in Missouri?
Mr. Justice. It absolutely was not.
Mr. Smith. What is your definition of local stakeholders?
Mr. Justice. Local stakeholders are local governments and
local grassroots organizations and land owners that actually
have invested their livelihood in making these areas succeed on
an economic and a personal level.
Mr. Smith. Believe it or not, that is what the Secretary of
the Interior says, that is why the White River Blueway was
created, is because of local stakeholders. Yet there was no
open public meetings in the 14 counties in Missouri. And there
were not any local county commissions, of those 14 counties,
that were in support. In fact, they are all opposed to it.
Mr. Justice. Right.
Mr. Smith. Does that sound like local stakeholders to you?
Mr. Justice. Absolutely not.
Mr. Smith. I think the concern that the individuals--and
let me know with several of the witnesses there--you are
worried about Federal Government implementing any kind of
program with open guidelines. Wouldn't that be safe to say?
Mr. Justice. Federal Government without restriction is
dangerous.
Mr. Smith. Absolutely. We have limited powers. Is that
correct?
Mr. Justice. That is absolutely right.
Mr. Smith. And they are defined by the Constitution. I
don't see anywhere in the Constitution where it says that we
should create a Blueway in the White River basin. Do you, Mr.
Justice?
Mr. Justice. I sure haven't found it, and I have actually
read it.
Mr. Smith. I don't. And I spoke with the Secretary of the
Interior just a couple hours ago, I asked her about this
program. And they have paused it, like we have mentioned,
because they need to get to know more about the program. I have
been on the job 42 days. I am learning this program pretty
good. She has been on the job for 3 months. She has been there
a little bit longer. So I think that she should know the
program a whole lot better.
But what scares me is that the lead person that she said is
Ms. Rebecca Wodder. And she is almost like Lois Lerner,
refusing to come testify. I would really love for the Obama
administration to be more open and more transparent. And this
is why the people in my district are scared to death when the
Federal Government is trying to come in and implement a new
designation with open guidelines and not knowing how it is
going to affect our property rights and our constitutional
rights.
So, I want to thank you all for being here again today.
Mr. McClintock. Thank you. We have had a request for an
additional round of questions. So let me begin by addressing
the line of questioning that my colleague from California, Mr.
Huffman, raised. And that is there doesn't seem to be any harm
or any foul here.
Now, first of all, why don't you address that, if you would
like?
Judge Griffin. The problem is when section 3 says that
these agencies have the current law available to make the goals
happen and 180-foot buffers among all surface waters in the
designation, which would include ponds, would include lakes,
tributaries, to it, it implies that power exists currently. And
I am telling you it does not in any of my experience, and I
have a farm background. I have cattle. I have row crop.
We have a 40-foot buffer of Bermuda grass on the Black
River to help decrease erosion. That was a voluntary program we
did. We didn't participate with the government or anybody.
So, even though it has not happened, the order itself
implies--and, in fact, states explicitly--they have a panoply
of ability to do these things, including withdrawing 30 percent
of agricultural acres that are eligible to be put into
conservation programs.
Mr. McClintock. And this is all explicit in the order.
Judge Griffin. Correct.
Mr. McClintock. Now, the order, so far, has only been
applied to two rivers, one in Connecticut and then the White
River that was later withdrawn. So they really haven't had an
opportunity yet to apply the explicit provisions of the order
that are clear to anyone who cares to read them. Is that
correct?
Judge Griffin. Correct, Mr. Chairman. Thank you for
bringing that back.
Mr. McClintock. It reminds me of something that Abraham
Lincoln said in his famous house divided speech. You know, he
said, ``We have to look not only at the law, but also the
machinery that the law embodies,'' how it could be used. He
says, ``Let anyone who doubts carefully contemplate that now
almost complete legal combination,'' piece of machinery, so to
speak, ``compounded by the Nebraska Doctrine, the Dred Scott
decision, let him consider not only what work the machinery is
adapted to do, and how well adapted, but also let him study the
history of its construction and trace, if he can--or, rather,
fail, if he can, to trace the evidence of design and concert of
action among its chief architects from the beginning.''
As you look at this machinery that has been constructed,
and the history of its construction, and who will be wielding
it, and what their policies have been, what do you conclude
from this Blueways order?
Judge Griffin. I conclude they intend the comply with what
its intent is, which is to reduce the acres, increase 180-foot
buffer zones, and within what they believe are current sections
of law able to do that.
Mr. McClintock. And apparently there are some Members of
Congress who are quite content to allow that machinery to be
brought into action with the wanton destruction of an untold
number of jobs and with enormous damage to local economies
before Congress does anything about it, and with the clear
view, as has been stated to this subcommittee, that power is
exclusively granted to the Congress, not to the Secretary of
the Interior.
Judge Griffin. I believe that, yes.
Mr. McClintock. I will yield back the balance of my time.
Mrs. Napolitano?
Mrs. Napolitano. Thank you, Mr. Chairman, for allowing a
second round.
There is a question. I guess the Blue River designation
included the White River, which apparently they have withdrawn.
It has been withdrawn. And the fact that the Secretary is
pausing the whole program is not necessarily because it is
flawed. I believe that something needs to happen, whether it is
because of the questions brought forth by Congress or whether
it is its impact on whoever is bringing up these issues.
There is only one designated National Blueway, and that is
the Connecticut River. It encompasses the four States of
Connecticut, Maine, New Hampshire, and Vermont. And it serves
about 4 million people who live along the river, even going
through Springfield, the second largest city in Maine.
Mr. Bacon, do you believe these citizens do not care about
their private property rights? And have there been instances of
land taking or water taking from the Connecticut River?
Mr. Bacon. I believe they do care about their rights, and I
am not aware of any issues.
Mrs. Napolitano. You have kind of hit upon some of the
benefits that have been very evident with the businesses,
creating the jobs and creating economy in the area. Why do you
think this is so important?
Mr. Bacon. Why Blueways is important? Again, I think,
crafted appropriately and applied appropriately to communities
that want it, like our community, we would cherish this kind of
designation because it recognizes the efforts that a diverse
stakeholder group, inclusive of private business, local
government, Native American reservation, public utility, all
care about our rivers and waterways, and we want to see that
kind of recognition program help brand the region and have some
of the benefits that we have talked about, in terms of health
and wellness, ecological integrity, recreational benefits, et
cetera.
Mrs. Napolitano. Were you consulted in regard to this
designation at all?
Mr. Bacon. No. This has been a completely bottom-up, local
stakeholder-driven initiative.
Mrs. Napolitano. So you feel that even though you were not
involved, or your agencies or businesses were not involved, it
is still beneficial.
Mr. Bacon. Yes.
Mrs. Napolitano. Thank you, Mr. Chair.
Mr. McClintock. Mrs. Lummis?
Mrs. Lummis. Thank you, Mr. Chairman. Regarding the
statutory authority for the National Blueways program, Ms.
Budd-Falen, you have looked at the statutes. Is there, first of
all, any one existing statute standing alone that gives the
Department of the Interior the authority to designate these
Blueways?
Ms. Budd-Falen. No, I have not found a single statute.
Mrs. Lummis. And how then, have they justified creating
this program?
Ms. Budd-Falen. They actually listed three statutes, and I
quote ``a panoply of other authorities,'' which I am not
exactly sure what that means. And most importantly, they listed
the America's Great Outdoors Initiative, which was also not
created by statute, it was created by a Presidential Executive
order through college listening sessions across the country. So
that did not have full public input, either.
But they listed the Take Pride in America Act, which is
basically a statute that encourages Americans to enjoy the
natural resources and participate in recreation, but it doesn't
govern anything.
They cited the Outdoor Recreation Act, which specifically
discusses national wildlife refuges, national fish hatcheries,
and other conservation areas currently administered by the
Secretary of the Interior for wildlife purposes. So that is not
statutory authority to create this huge Blueways that covers
State and private land.
The third act that they cite is the Cooperative Watershed
Management Program of the Omnibus Public Lands Management Act
of 2009. Although that talks about creating watershed programs,
it is only applicable to very specific bureaus within the
Department of the Interior. And under those specific
authorities, it is very specific as to what each bureau can do.
It does not imply to the giant Department of the Interior to
create a new program.
That is what they listed as their statutory authority in
the order.
Mrs. Lummis. So, by cherry-picking or cobbling together
these different statutes enacted by Congress in different
contexts to create the basis for their legal authority, what
kind of legal precedent is being set by the Blueways order?
Ms. Budd-Falen. Actually, I believe this is very dangerous
precedent, because the Federal Government, as Congress knows,
has very broad authorities that you have set.
But you also, in your statutes, told them the priorities
for their authority. And if you now allow agency departments
and agencies to start picking and choosing what they want to
implement and why, and creating new programs out of whole
cloth, if it starts with Blueways, it will clearly go into
something else. There is simply--you are simply losing control
of the bureaucracy, and you are an equal branch of government.
You should be setting the programs and priorities, not some
Federal agency that we cannot elect and we have no control
over.
Mrs. Lummis. Thank you. Now, turning to Judge Griffin, in
terms of Federal officials that were driving this thing in the
White River area, how do you think they were able to convince
some of the local governments in the watershed to support the
Blueway?
Judge Griffin. They were solicited in hopes of gaining
additional Federal funding for projects that they were working
cooperatively currently to achieve.
Mrs. Lummis. OK. So a Federal financial carrot was dangled
in front of some of the folks that took a bite out of it,
right?
Judge Griffin. That is my understanding from what they told
me.
Mrs. Lummis. And were other groups that are riparian to
this watershed area consulted?
Judge Griffin. None that I am aware of.
Mrs. Lummis. Now, here is a question for Mr. Bacon. I know
you testified that in your case the process was a locally
determined vision for a waterway. After listening to Judge
Griffin and Mrs. Budd-Falen, would you call these processes,
especially the one for the White River Blueway, a locally
determined vision for a waterway?
Mr. Bacon. Based on the testimony, I think there are
opportunities for the Department of the Interior to improve its
processes.
Mrs. Lummis. Do you think, though, that there were groups
that should have been included that weren't?
Mr. Bacon. It would seem so.
Mrs. Lummis. In your case, how did you all ensure that
process would be inclusive of stakeholders that were riparian
to the area?
Mr. Bacon. Exclusive of the Blueways process, we have
acknowledged and created a stakeholder group to grow the
outdoor recreation economy----
Mrs. Lummis. Why exclusive? Why exclusive to the process?
Mr. Bacon. I would say not exclusive, but independent of
the process. We were going----
Mrs. Lummis. Yes, and why? Why independent?
Mr. Bacon. We were doing it anyway. We think it is
important.
Mrs. Lummis. You were doing it anyway?
Mr. Bacon. Yes.
Mrs. Lummis. Thanks, Mr. Chairman. I yield back.
Mr. McClintock. Mr. Tipton.
Mr. Tipton. Thanks, Mr. Chairman. I just had a couple of
questions. Ms. Budd-Falen, you made the comment in our previous
series of questions when agencies make designations they take
on a life of their own. And I believe you were just speaking to
this again.
Do you have a deep concern if a Blueways program is allowed
to be able to proceed, it doesn't stop there, we will see
compounded rules, compounded regulations? And, if I understood
you correctly, you have got a deep concern that a rule or a
regulation which has the impact of law is going to expand far
beyond the original intent?
Ms. Budd-Falen. I believe that is exactly the case. And I
believe if you simply look back on the pattern of other
designations, including designations like Wild and Scenic and
Wilderness that are created by Congress, that those take on a
life of their own, regardless of the sideboards that are put on
it. They just take on a life of their own because of
bureaucracies or because of Federal court litigation.
Mr. Tipton. Judge, you have dealt with a lot of local
issues. Have you seen that to be a tendency out of the Federal
Government, that once a program is initiated it doesn't stop,
it just expands and grows and has impacts on the local
community?
Judge Griffin. It seems to become a living, breathing
entity of its own.
Mr. Tipton. Mr. Justice, any comment?
Mr. Justice. Well, I completely agree with that, that it
does grow. But another thing that I would like to point out is
that one of the things that the Blueway designation said--one
of the reasons they were enacting this was because of the
positive steps that local people were taking, and local groups
were taking in conservation.
Well, that just shows that we were doing it already,
because we were motivated to do it for ourselves. We weren't
motivated to do it for some higher power of Federal Government.
So we are taking care of it. We don't need this.
And I must disagree a little bit with Mr. Bacon when he
said that this was a positive thing, we wanted the recognition,
we wanted to be recognized for this. We don't. We want to be
left alone.
Mr. Tipton. Thank you. Thank you for that. And, Mr. Bacon,
I am just interested a little bit maybe in your business. Do
you have to have a permit?
Mr. Bacon. We do.
Mr. Tipton. For your permit?
Mr. Bacon. Yes, sir.
Mr. Tipton. Does the Government have the right to be able
to rescind the permit?
Mr. Bacon. Under some circumstances.
Mr. Tipton. Some circumstances. And, Mr. Chairman, if I
may, I would like to maybe broaden this discussion just a
little bit from my end.
We not only have Blueways, but we also have the national
forests as a conditional use of permit requiring ski areas in
my part of the country and your part of the country, farmers,
ranchers, who have paid for and developed water rights that are
coming off the public lands, because in Colorado it all comes
off of public lands. If they do not comply, they are going to
have to sign over their water rights in order to be able to get
that permit.
This is a control reach by the Federal Government, and I
see the two series that are working in unison, actually:
conditional use of permit followed up now by Blueways and you
had brought up--and I believe we are going to be having some
hearings and talking with Secretary Jewell, hopefully, in
regards to the sage grouse--we are seeing the West being
greatly challenged by the expansive and heavy hand of the
Federal Government, and the impact that is going to have on our
communities and the future of our ability to be able to raise
our families, and for moms to be able to take care of those
families. I don't think that we can overstate that.
So, Mr. Chairman, I applaud you for holding this hearing.
And again, I would like to thank all of the panel for taking
the time to come in and testify. I yield back.
Mr. McClintock. I thank you. I believe that concludes the
committee's questions. I again want to thank the witnesses for
their indulgence of the committee's schedule today. Mr. Bacon,
I think, may have had to postpone a flight. Thank all of you
for your service to the committee.
And the Chair would also like to thank our assistant
committee clerk, Mr. Riely Weaver, for generously donating his
free time to assist our----
Mrs. Lummis. Mr. Chair, is he in training?
[Laughter.]
Mr. McClintock. I think he is already trained, as a matter
of fact.
At any rate, if there is no further business to come before
the committee--and also, just a quick warning, you may get
additional questions by the committee members. The committee
record will be held open for 10 days to receive additional
comments. And, with that, if there is no further business, this
subcommittee stands adjourned.
[Whereupon, at 4:16 p.m., the subcommittee was adjourned.]
[Additional Material Submitted for the Record)
Prepared Statement of the U.S. Department of the Interior
national blueways system
Mr. Chairman and members of the subcommittee, thank you for the
opportunity to provide the views of the Department of the Interior
(Interior) on the National Blueways System.
Healthy rivers and watersheds are among America's most loved
national treasures. These resources are vital to local economies, to
enjoyment of the natural world, and to the quality of the environment
on which we all depend. Healthy rivers and watersheds provide jobs and
revenue for local communities, enhanced opportunities for outdoor
recreation and tourism, reliable supplies of clean water, flood and
drought protection, habitat and migration corridors for fish and game,
and other valuable economic, social and ecological services. Across the
country, local groups, communities, individuals, businesses, tribes,
conservation districts and State and local governments have been
working to protect their rivers and watersheds for their economic and
ecological values.
establishment
To recognize and support these locally led efforts to sustain the
economic, recreational, and natural values of rivers and watersheds of
national significance, then Secretary of the Interior Ken Salazar
signed Secretarial Order #3321 on May 24, 2012, establishing the
National Blueways System. The National Blueways System is intended to
recognize and support exemplary river and watershed partnerships that
request this recognition. These partnerships collaborate, cooperate,
and promote nationally significant rivers and their watersheds that are
highly valued as economic, recreational, social, and ecological assets
by the communities that depend on them. National Blueways are locally
envisioned and led by diverse stakeholder partnerships consisting of
the communities, organizations, and agencies that have an interest in
the welfare of their river, its watershed, its resources, and the
public. National Blueways partnerships use a landscape-scale approach
to river conservation that integrates land and water stewardship
efforts within a working landscape from headwaters to mouth and across
entire watersheds.
The National Blueways System is a voluntary program intended to
highlight and support successful collaborative strategies for
sustainable river and watershed resources led by diverse stakeholder
communities and organizations. Inclusion in the National Blueways
System recognizes and supports river system stewardship efforts that
enhance abundant conservation, environmental education, recreation, and
economic opportunities. This recognition program is intended to reward
the work of stakeholder partnerships and provide Federal support to
increase collaboration among diverse partners. A National Blueways
System also will help coordinate Federal, State, tribal and local
partners to promote best practices, share information and resources,
and encourage active and collaborative stewardship of rivers and their
watersheds across the country.
In these ways, the National Blueways program is intended to support
conservation efforts and bolster valuable economic growth and job
creation providing long-term value for the American people. The success
of the stewardship of these rivers is an important component of the
America's Great Outdoors initiative, which supports a community-driven
conservation and recreation agenda for the 21st century.
The Secretarial Order was issued in accordance with authorities
provided under the Take Pride in America Act, Public Law 101-628; the
Outdoor Recreation Act, Public Law 87-714; and the Cooperative
Watershed Management Program of the Omnibus Public Land Management Act
of 2009, Public Law 111-11. In addition, the agencies within Interior
have a broad panoply of legal authority to carry out their respective
missions that support enhancing river recreation, undertaking river
restoration, and pursuing river protection initiatives to pass on
healthy rivers to future generations.
The Secretarial Order directs Interior agencies to collaborate in
supporting the National Blueways System to the extent permitted by law
and consistent with their missions and resources. It also establishes
an inter-agency committee (the National Blueways Committee) to provide
leadership, support, and coordination to the program. The committee
includes representatives of Interior and its agencies, including the
Fish and Wildlife Service, the Bureau of Reclamation, the Bureau of
Land Management, the Bureau of Indian Affairs, the National Park
Service, and the U.S. Geological Survey, in addition to representatives
of the Department of Agriculture (USDA) and the Army (Civil). In
January 2013, Interior, USDA, and the Army (Civil Works) signed a
Memorandum of Understanding demonstrating continued support by these
agencies of the National Blueways System and, in particular,
enhancement of river-oriented outdoor recreation and education, natural
resource stewardship, and sustainable economic development at a
watershed-scale.
recognition of the connecticut river
Simultaneously with the issuance of the Secretarial Order, then
Secretary Salazar recognized the long-standing, exemplary work of local
stakeholders and, at their request, designated the Connecticut River
and its watershed as the first National Blueway to serve as an
inspiration and model for future designations. The 410 mile long
Connecticut River and its 7.2 million-acre watershed covers parts of
Connecticut, Massachusetts, New Hampshire, and Vermont, and its
watershed includes the Silvio O. Conte National Fish and Wildlife
Refuge, which contains sub-boreal forests, floodplains, a major
migratory pathway, and a globally recognized wetland. The Connecticut
River is also an important economic resource to the 2.4 million
residents and 396 communities in the watershed. Annually, 1.4 million
people enjoy the recreational opportunities presented by the watershed,
including National Recreation Trails, scenic byways, Wild and Scenic
Rivers, and National Natural Landmarks. These and other recreation
opportunities contribute an estimated $1.0 billion to local economies,
according to the Trust for Public Land.
The Connecticut River National Blueway designation recognizes and
supports over a half century of successful and expanding local and
regional collaboration between local, State, and Federal Governments,
organizations, landowners, and numerous other stakeholders. In response
to an invitation from Secretary Salazar to identify top priority
recreation and conservation projects for President Obama's America's
Great Outdoors Initiative, the Governors of Connecticut, Massachusetts,
New Hampshire and Vermont identified the Connecticut River and Valley,
and sought ways to partner with Federal agencies on collaborative
conservation in the Connecticut River watershed. The designation
recognizes the efforts of more than 40 organizations and agencies
working together for nearly a decade to shape and pursue a vision for a
healthy Connecticut River and its watershed. Support for this
recognition has been positive and sustained.
recognition of the white river watershed
The nomination for the White River Watershed to be recognized as a
National Blueway was made on August 24, 2012, by a diverse, locally led
watershed partnership which included a wide array of State and local
stakeholders involved with the White River and its watershed in
Arkansas and Missouri. The National Blueways Committee found that the
White River Watershed met the criteria for National Blueway
recognition, and on January 8, 2013, then Secretary Salazar added the
White River Watershed in Arkansas and Missouri to the National Blueways
System.
The proponents of this nomination hoped that designation would be a
catalyst to promote connecting the conservation actions of the upper
watershed in the highlands with the floodplain systems of the lower
watershed, and would foster new partnerships, strengthen existing
relationships, connect communities, engage stakeholders, and benefit
the local economies. However, in letters dated June 28, 2013, and July
2, 2013, the State and local stakeholders involved with the nomination
of the White River Watershed as a National Blueway requested that the
designation be withdrawn.
Because the National Blueways program is a locally led program, on
July 3, after receiving letters from these stakeholders, and with the
concurring recommendation of the National Blueways Committee, Secretary
of the Interior Sally Jewell withdrew the designation.
benefits of recognition
Recognition as a National Blueway for rivers and watersheds of
national significance is intended to promote and conserve economic,
recreational, and natural values of healthy river systems from source
to outlet and across watersheds. The National Blueways program does not
establish a new protective status or regulation of lands, either public
or private, nor does it impose use limitations or other requirements.
The Secretarial Order establishing the program was clear in stating its
intent that the Blueways recognition does not authorize or affect the
use of private property, nor be the basis for the exercise of any new
regulatory authority. Instead, recognition as a National Blueway is a
means of identifying the collaborative efforts of stakeholders and, by
virtue of that recognition, encouraging support for existing local and
regional conservation, recreation, and restoration efforts. Within
Interior, it is also a means of coordination among our various bureaus
with ongoing Federal, State, tribal and local activities.
The program is an example of a multi-agency/organization
partnership addressing the full variety of seemingly unconnected
activities necessary for successful landscape-scale conservation.
National Blueway recognition is intended to expand the
opportunities for stakeholder organizations involved in a watershed-
wide initiative, and to help make the Federal Government a more
effective partner through enhanced communication, coordination and
collaboration. This coordination is intended to improve ecosystem
services and, in the long term, increase the sustainability of natural
resources and dependent local economies, providing a better quality of
life for residents of the watershed.
The National Blueways program is entirely voluntary, and private
landowners, local groups, local communities, businesses, State and
local government agencies, are free to choose to not participate in any
assistance programs or initiatives undertaken by the stakeholder
partnership.
Such benefits are already starting to emerge from the Connecticut
River designation including expanded participation of stakeholder
groups and better coordination among the many groups that share similar
programs and goals but may not have worked together given the size of
the watershed. A Memorandum of Understanding between DOl, USDA and Army
(Civil Works) was signed in September 2012, committing Federal agencies
with land and water management responsibilities in the Connecticut
River watershed to work together, consistent with each agency's
priorities and legal authorities, to support the stakeholder
partnership's efforts to enhance recreation, conservation, education
and economic activities. An online river atlas is under development for
use by stakeholders to share information with the public about Blueway-
related activities and opportunities on the river.
conclusion
Enjoying and protecting the Nation's lands and waters is an
American value that crosses regional, demographic, and political lines.
The voluntary partnerships fostered under this program encourage a
broad range of stakeholders from Federal, State, tribal, and local
governments to non-profit organizations, private landowners, and
businesses to work together toward a vision of healthier rivers and
watersheds that benefit the economy and conservation. The
administration is committed to encouraging innovative partnerships in
communities across the Nation, expanding access to rivers and trails,
maintaining wildlife corridors, and promoting conservation while
working to protect historic uses of the land including ranching,
farming, and forestry. The National Blueways System supports and
recognizes exemplary partnerships promoting a landscape-scale approach
to river conservation within a working landscape. Interior is proud of
these shared accomplishments, and looks forward to what can be achieved
in the future through these partnerships.