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Committee on Resources Witness Testimony TESTIMONY PRESENTED BY Mr. Chairman, members of the committee and visitors, thank you for the opportunity to present comments before this committee. My name is Bill DeVeny. This written testimony is submitted in support of H.R. 1842 to terminate further development and implementation of the American Heritage Rivers Initiative. I am a rancher from Riggins which is in Central Idaho. I am speaking in behalf of the Idaho Farm Bureau Federation representing 47,000 member families in Idaho and also in behalf of myself. Water is the lifeblood of Idaho, so the way it is managed and used is of concern to all of us in Idaho. Water is not only essential for all domestic uses, but has transformed the arid southern part of the state into productive, irrigated crop ground producing grain, onions, beans, potatoes, sugar beets, hay, mint, hops, small seeds, fruit, and numerous other crops on 3.4 million acres. The value of agricultural products produced including cattle is $35 to $45 billion. Water provides transportation from the Port of Lewiston to the Pacific Ocean at Portland, Oregon, for 2 million tons of cargo valued at $1.5 to $2.0 billion. Hydro-power generation of electricity provides an average of 70 percent of the electricity used in Idaho. Recreation, which is the third largest industry in the state, depends heavily on water resources including lakes, rivers and streams for a variety of uses such as rafting, boating, and fishing. Continued use of Idaho water is essential to the continued well being and quality of life for residents of this state. One concern I have with the American Heritage Rivers Initiative is that it circumvents the right of states to manage and control water which is clearly a right of each individual state. The Idaho Constitution (as approved by Congress when Idaho entered the Union) expressly states: "The use of all waters...(is) subject to the regulations and control of the state...". Additionally, Idaho code 42-101 states: "All the waters of the state, when flowing in their natural channels, including the waters of all natural springs and lakes within the boundaries of the state are declared to be the property of the state, whose duty it shall be to supervise their appropriation and allotment to those diverting the same therefrom for any beneficial purpose." The initiative would clearly be in direct violation of state law and the state constitution. Another concern I have with the American Heritage Rivers Initiative is that nowhere in the Constitution of the United States is there authority for the federal government to become involved in the issue of water. The Constitution enumerates the powers granted to the federal government and reserves all others to the states or to individuals. Furthermore, there is no authority for the federal government to expend funds for the American Heritage Rivers Initiative. The following is quoted from IMPRIMIS, "Our Unconstitutional Congress," by Stephen Moore.
There certainly is nothing that allows the executive branch to initiate spending programs. My understanding has always been that spending originates with the House of Representatives. The American Heritage Rivers Initiative is duplication of effort between other federal, state, and local agencies: for example, the Corps of Engineers, Rural and Economic Community Development, Rural Development Councils, Natural Resource Conservation Service, and Soil Conservation Districts to mention a few. There also are other rural initiative programs in effect and there is no reason to think that another federal program can accomplish what these other programs are not doing, nor can any other federal program cause existing federal programs to be more efficient or effective. In reality, probably just the opposite is true. A serious anomaly is created by the initiative when "nongovernmental organizations" are included to nominate rivers, and to "coordinate delivery of federal services" and "...restore, protect, and revitalize American Heritage Rivers that run through their communities." These nongovernmental organizations are the same organizations that do not respect any of the heritage of the American West. The heritage, at least in the West, relies first on the trappers (which have become virtually extinct), then miners, later grazers followed by farmers, next loggers, and recently recreationists. These nongovernmental organizations are the very ones that are trying to send the rest of us, grazers, farmers, loggers, and recreationists, the way of the trappers- into extinction. The nongovernmental organizations might tolerate a few recreationists who are hardy souls and want brave a wilderness, but even that will require agency permission. The American Heritage Rivers Initiative is in conflict with other federal laws such as the Clean Water Act and does not comply with existing laws such as NEPA which requires an extensive environmental assessment for federal actions or at least a finding of no significant impact. The initiative attempts to avoid the intent of Congress when it passed the Congressional Review of Agency Rulemaking Act by claiming this is not a rule. It also avoids, in fact violates, the Administrative Procedures Act. The American Heritage Rivers Initiative is circumventing the authority of Congress and vesting authority in yet another bureaucracy. It introduces another layer of bureaucracy which we do not need. Agencies have become the "fourth" arm of government and this is detrimental. We need less bureaucracy, not more. From personal experience about two weeks before this hearing I was contacted by two federal employees wanting to come on my private property to make a stream side survey to see what kind of fish were in a very small stream running through my property and what kind of habitat there was. When questioned why they wanted to make the survey, the employees would not tell me why they wanted to know, what they would do with the information, or by what authority they were collecting this information. From experience I am pretty sure that whatever they did would probably not be for my benefit and would probably be detrimental to my interests and well being and in the long run to the general public as well. This is simply an example of the intrusiveness of government that this new initiative would create more of. The "river communities" that would be created by the American Heritage Rivers Initiative would have no jurisdictional basis and could, in fact, cross jurisdictional lines such as those between cities and counties and thus create hard feelings or confrontations. The results could be chaotic and entirely unpredictable situations. When the prospect of grant money is added to a legislative proposal, local units of government have a hard time saying no. Several years ago I was asked to testify at a meeting of the Idaho Association of Counties concerning some of the heritage legislation that was being proposed by the late Morris Udall. Earlier versions of heritage legislation had been rejected, but when the counties were promised a share of the money which most certainly would have been "pork", many county commissioners had a hard time saying no. They were willing to accept the money regardless of the consequences even though there might have been serious bad side effects from accepting this money. Fortunately there were enough commissioners present who could see the down side to the proposed legislation that the Association of Counties voted to reject the proposal. Since the "river communities" are not legally established units of government, the temptation to accept grant money might even be greater and put the private property owners within the area in jeopardy because of the obligations that would come associated with the grant money. There always are some obligations, even though hidden initially. Grant money is a "carrot and stick" approach. The promise of grant money is the carrot. Any agency is made up of human beings, and they can be very unfriendly, then the stick is wielded. In an initiative such as this one there are myriad opportunities for favoritism. This initiative is particularly susceptible to these failings, and to creating special favors for selected people or groups of people. Another concern I have is for the position that would be created of "river navigator". This would be yet one more unelected official who would have untold powers over the rights, lives, and livelihoods of citizens of the area involved yet individuals impacted would have no recourse for unfavorable actions or decisions. Local control and decision making will be further diluted. For instance in Idaho, this could interfere with the Snake River Basin Adjudication of water rights that is taking place for the Snake River System. This is a legal proceeding. Once a river is designated, the designation becomes permanent and there are no provisions to reverse this designation or for individuals or groups of individuals to opt out of the program. The definition of those who can propose a designation would allow people from entirely out of the area to control local issues. The American Heritage Rivers Initiative is yet another tool for use by environmental extremists to stop the wise use of our lands. This is an issue about the control of resources, Separation of Powers, State Sovereignty, private property rights, and freedom from unnecessary and harmful federal intrusion. In my view the American Heritage Rivers Initiative is contrary to every thing I have ever learned about our form of government. We are a nation of laws. The legislative branch is to create the laws, the executive branch is to implement and to enforce the laws, and the judiciary branch is to interpret the laws- not to make the laws. The American Heritage Rivers Initiative is contrary to each of those tenets. This country is founded on several important principles not the least of which is the right to own private property. One of the primary reasons many, if not most, immigrants came to this country was the freedom to own and control land outright. This initiative is just another chink in taking away private property rights and a step toward federal land use control. I know of no instances where the government does a better job in the long run of managing property than private property owners themselves. We need less government control, not more, so I encourage you to do whatever is in your power to curtail the American Heritage Rivers Initiative. Withholding funding as proposed in H.R. 1842 is certainly a step in the right direction. We do not want another federal designation. We do not want a greater federal presence. We do not want enhanced federal control over our waters. And we do not want the government to come up with yet another way to spend taxpayer dollars. Thank you for the opportunity to provide these comments. ###
Committee on Resources Witness Testimony STATEMENT OF ROBERT S. LYNCH Mr. Chairman, Members of the House Resources Committee, thank you for the opportunity to appear here today and testify on the American Heritage Rivers Initiative and H.R. 1842. I have the pleasure of serving as Chairman of the Board of the Central Arizona Project Association, an Arizona non-profit association formed in 1946 to promote authorization and then construction and operation of the Central Arizona Project. Our Association membership represents business, resource, local government and agricultural interests throughout the state interested in the continued success of the Central Arizona Project. The Project itself consists of over 300 miles of canal system and a regulating reservoir that provides an average of 1.5 million acre-feet of water annually to roughly two-thirds of the population of the state, industries, agriculture and Indian communities in central Arizona. That quantity of water represents over half of the entitlement of the State of Arizona to water from the Colorado River and some 20% of the entitlement of the three Lower Basin states (Arizona, California and Nevada) to water from the Colorado River. Our interest in the American Heritage Rivers Initiative stems from our interest in and support of the Central Arizona Project. We are concerned that implementing this Initiative could very well interfere with ongoing efforts to resolve problems in the Colorado River Basin that affect the Central Arizona Project and its water supply. Our concerns fall into three categories: participation, process and personnel. PARTICIPATION Both the President's Executive Order and the Council on Environmental Quality (CEQ) Federal Register notice imply some loose geographic standard for defining non-federal participation in this Initiative. The Executive Order talks about "communities along rivers", 62 Fed.Reg. 48443 at 48445 (September 15, 1997). The CEQ Federal Register notice talks about "communities surrounding designated rivers" and "River communities" and "People ... who live and work in the area ...", 62 Fed.Reg. 48860, 48862 (September 17, 1997). The Phoenix metropolitan area served by CAP is some 190 miles from the Colorado River. The Tucson metropolitan area is another 120 miles beyond that. CAP is a vital part of the water supplies of central Arizona but this Initiative apparently would not consider these vital interests part of the interests to which the interagency committee established by the Executive Order would listen concerning the Colorado River. Similarly, Salt Lake City would have no voice in matters related to the Duchesne or Green Rivers, even though receiving water from the Central Utah Project. Denver and other east slope Colorado cities would have no voice in the Colorado, the Green, the Yampa, the White, the Gunnison, etc. People in Albuquerque could voice opinions about the Rio Grande but not the San Juan. The Los Angeles metropolitan area would have nothing to say about the Lower Colorado River as this Initiative may impact it. Presumably national and regional environmental groups and other organizations also would be excluded from this process. The point is that legitimate interests concerning rivers are not confined merely to those who live or work alongside them. Nor is proximity much of a test when, as is often the case in the West, no one lives or works alongside them. It appears that those who crafted this Initiative, while paying lip service to rural areas and Western communities, were primarily drawing on their personal experiences as residents of other parts of the country. In the West, legitimate interests regarding rivers are often at great distance from them. That does not render these interests any less legitimate nor any less important. The Initiative is seriously flawed in this respect. PROCESS We are very concerned about the processes outlined in the Executive Order and the CEQ program. The Executive Order mandates a consultation requirement that must precede federal agency action with regard to rivers designated under this program. There is no explanation in the Executive Order or in the CEQ program about how this gets done and how this consultation requirement relates to similar requirements in various laws affecting the same resources. For example, the 1992 Grand Canyon Protection Act contains some very specific directives from Congress about consultation. If the Colorado River between Glen Canyon Dam and Lake Mead were designated under this Initiative, would this consultation requirement add processes to those required by Congress? There is no requirement, according to the Fish and Wildlife Service, under Section 7 of the Endangered Species Act to consult with affected interests when the Service is consulting with another federal agency (or itself) as required by Section 7. If a river is designated under the Initiative, must the Fish and Wildlife Service now consult with affected interests before entering into consultation with another agency under Section 7? Must the Environmental Protection Agency add a consultation requirement pursuant to this Executive Order to permit processes under the Clean Water Act and other programs it administers? We raise these issues because we have had some experience with the Colorado River and these programs. There is an ongoing recovery program in the Upper Colorado River related to four endangered fish. There is a program entered into for the Lower Colorado River between the United States on the one hand and the three Lower Basin states and other affected interests on the other covering over 100 species from Glen Canyon Dam to the southerly international border. If the Colorado or any portion of it were designated, would these processes be impacted by this new consultation requirement? Would the River Navigator or River Navigators designated assume a role not currently defined in Colorado River processes? Would the consultation requirements of the 1968 Colorado River Basin Project Act be affected? Additionally, the CEQ Federal Register notice promises that obligations of federal agencies under the National Environmental Policy Act will not be disturbed by this Initiative (62 Fed.Reg. at 48866). Since the agencies in the next breath are being directed to provide programs and resources aimed at satisfying community interests in site-specific areas of a watercourse, it would seem that this program is creating a new class of federal actions requiring NEPA clearance separate and apart from existing programs. Will designation require such NEPA clearance before any federal help can be received after the designation? Who will pay the cost of that clearance? PERSONNEL Finally, we are concerned about the effects of implementing this new Initiative on federal personnel and the costs associated with that commitment. The Executive Order requires agencies to establish a method for field offices to assess the success of the Initiative and recommend changes. The Executive Order also mandates high-level participation by 12 departments and agencies, directs the agencies to do a number of assessments and inventories of programs, regulations, grants and other assistance and then requires them to reformulate those to fit this Initiative. That reads like a serious time commitment. In turn, the CEQ program announces that federal field staff have been identified in each state to answer questions (62 Fed.Reg. at 48861). It provides for a River Navigator to be available for each designation. This person would be a federal employee. Other federal employees would have to be involved in distributing, receiving and processing nomination packets. A report for the panel of experts would have to be provided and staffing for the cabinet or sub-cabinet interagency task force would also have to be provided, as well as the members themselves. All of this takes time. Presumably, the people involved in this program at the various agencies will be people with some knowledge and background about rivers and about the resources typically associated with them. People knowledgeable in the sciences, people active in cultural, archaeological, endangered species, water resources, power resources, wetlands, and environmental programs, etc., will have to be detailed to these tasks. We are concerned that doing so will pull them away from other important tasks that already take too much time to get accomplished. We are concerned that other coordination and permitting processes could suffer. Specifically, we are concerned that people already stretched to the limit will be drawn away from two critical Endangered Species Act programs: the Upper Basin Recovery Program and the Lower Colorado River Basin Multi-Species Conservation Plan. We are also concerned that, in a year of stressful hydrologic conditions, personnel of the Bureau of Reclamation may be diverted from critical tasks on the Colorado River to other areas because of designations that need to have knowledgeable people involved in them. We are also concerned that costs associated with implementing this new program have not been addressed. Even if no new dollars are appropriated by Congress for grants, loans, construction funds, and the like, the personnel costs associated with implementing this program have to be borne somewhere. How will those costs be allocated? To what programs or projects will they be assigned? Will they be reimbursable by local sponsors of existing projects and programs? Is there a danger of significant cost shifting from costs already assigned pursuant to which Congress has already approved funding? One thing is clear. There will be costs in both time and dollars associated with implementing this Initiative. Those costs are real and may be substantial. If the Initiative goes forward, those costs should be tracked and reported to Congress by each of the agencies involved. In the meantime, the public should be assured that existing projects and programs will not be hampered by this additional workload. Justice delayed is justice denied in the Executive Branch as well. Before closing, we would be remiss if we did not congratulate Congressman Bob Schaffer for his efforts in having inserted in the CEQ Federal Register notice the savings language with regard to water and water rights. That had been and continues to be a matter of critical concern to us and to many others in the West. We remain concerned, however, that the focus of designation pursuant to this Initiative on a particular watercourse will concentrate interest in applying other regulatory programs to those water resources in a manner that could create the same problems this savings language seeks to avoid. If Congress is providing no additional money beyond salaries and administration for this program, what the agencies are left with is a command from the President to go forward and only existing tools to use. The federal tools used on rivers are typically the Endangered Species Act, the Clean Water Act, the Safe Drinking Water Act and similar laws with federal enforcement programs and permit programs. The river community congratulating itself about its designation may find that the "help" it is getting from the federal government comes in the form of increased demands for changes in water uses. Concentrated examination under existing regulatory programs of that river or river segment may generate local costs, rather than local benefits. CONCLUSION Having made a sincere effort to review these documents and understand their intent, we are unfortunately left confused. We do not see how CAP interests can participate in, let alone be enhanced by, this new program. We cannot tell how the requirements of this new program mesh with existing requirements that affect CAP interests and the interests of others similarly situated. We cannot ascertain how the costs of this new program and the time burdens associated with it will be allocated and what barriers to accomplishing tasks under other programs will be created. This new program is uncomfortably vague. We would recommend that this program be set aside, at least for the moment. Perhaps CEQ could enter into another, more inclusive, round of discussions with interested groups and parties around the country and answer the questions that have been raised such as those we raise here. Failing interest in doing that, regretfully we would recommend that Congress withhold funding for any efforts under this Initiative until it can be clarified as to its purpose and impacts. Thank you very much for the opportunity to appear here today and testify on this important subject. ### |