[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]
H.R. 2963, TO ESTABLISH THE DEEP CREEK WILDERNESS AREA
=======================================================================
LEGISLATIVE HEARING
before the
SUBCOMMITTEE ON FORESTS AND
FOREST HEALTH
of the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
October 16, 2001
__________
Serial No. 107-67
__________
Printed for the use of the Committee on Resources
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COMMITTEE ON RESOURCES
JAMES V. HANSEN, Utah, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska, George Miller, California
Vice Chairman Edward J. Markey, Massachusetts
W.J. ``Billy'' Tauzin, Louisiana Dale E. Kildee, Michigan
Jim Saxton, New Jersey Peter A. DeFazio, Oregon
Elton Gallegly, California Eni F.H. Faleomavaega, American
John J. Duncan, Jr., Tennessee Samoa
Joel Hefley, Colorado Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland Solomon P. Ortiz, Texas
Ken Calvert, California Frank Pallone, Jr., New Jersey
Scott McInnis, Colorado Calvin M. Dooley, California
Richard W. Pombo, California Robert A. Underwood, Guam
Barbara Cubin, Wyoming Adam Smith, Washington
George Radanovich, California Donna M. Christensen, Virgin
Walter B. Jones, Jr., North Islands
Carolina Ron Kind, Wisconsin
Mac Thornberry, Texas Jay Inslee, Washington
Chris Cannon, Utah Grace F. Napolitano, California
John E. Peterson, Pennsylvania Tom Udall, New Mexico
Bob Schaffer, Colorado Mark Udall, Colorado
Jim Gibbons, Nevada Rush D. Holt, New Jersey
Mark E. Souder, Indiana James P. McGovern, Massachusetts
Greg Walden, Oregon Anibal Acevedo-Vila, Puerto Rico
Michael K. Simpson, Idaho Hilda L. Solis, California
Thomas G. Tancredo, Colorado Brad Carson, Oklahoma
J.D. Hayworth, Arizona Betty McCollum, Minnesota
C.L. ``Butch'' Otter, Idaho
Tom Osborne, Nebraska
Jeff Flake, Arizona
Dennis R. Rehberg, Montana
Allen D. Freemyer, Chief of Staff
Lisa Pittman, Chief Counsel
Michael S. Twinchek, Chief Clerk
James H. Zoia, Democrat Staff Director
Jeff Petrich, Democrat Chief Counsel
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SUBCOMMITTEE ON FORESTS AND FOREST HEALTH
SCOTT McINNIS, Colorado, Chairman
JAY INSLEE, Washington, Ranking Democrat Member
John J. Duncan, Jr., Tennessee Dale E. Kildee, Michigan
John E. Peterson, Pennsylvania, Tom Udall, New Mexico
Vice Chairman Mark Udall, Colorado
Mark E. Souder, Indiana Rush D. Holt, New Jersey
Michael K. Simpson, Idaho Anibal Acevedo-Vila, Puerto Rico
Thomas G. Tancredo, Colorado Betty McCollum, Minnesota
J.D. Hayworth, Arizona
C.L. ``Butch'' Otter, Idaho
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C O N T E N T S
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Page
Hearing held on October 16, 2001................................. 1
Statement of Members:
McInnis, Hon. Scott, a Representative in Congress from the
State of Colorado.......................................... 1
Prepared statement of.................................... 3
Rahall, Hon. Nick J. II, a Representative in Congress from
the State of West Virginia, Prepared statement of.......... 4
Udall, Hon. Mark, a Representative in Congress from the State
of Colorado................................................ 4
Statement of Witnesses:
Kimbell, Abigail, Acting Associate Deputy Chief, Forest
Service, U.S. Department of Agriculture.................... 6
Prepared statement of.................................... 7
Chart submitted for the record........................... 9
Martin, John, County Commissioner, Garfield County, Colorado. 14
Prepared statement of.................................... 15
Smith, Steven W., Associate Regional Representative, Sierra
Club, on behalf of the Colorado Wilderness Network......... 17
Prepared statement of.................................... 19
Letters submitted for the record......................... 22
Stone, Tom C., Eagle County Commissioner, State of Colorado.. 32
Prepared statement of.................................... 32
Resolution submitted for the record...................... 34
Treese, Christopher J., External Affairs, Colorado River
Water Conservation District, Colorado Springs, Colorado.... 16
Prepared statement of.................................... 16
Additional materials supplied:
Best, Joel E., Commander, High-altitude ARNG Aviation
Training Site, Letter submitted for the record............. 42
LEGISLATIVE HEARING ON H.R. 2963, TO ESTABLISH THE DEEP CREEK
WILDERNESS AREA, AND FOR OTHER PURPOSES
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Tuesday, October 16, 2001
U.S. House of Representatives
Subcommittee on Forests and Forest Health
Committee on Resources
Washington, DC
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The Subcommittee met, pursuant to call, at 5:05 p.m., in
Room 1334, Longworth House Office Building, Hon. Scott McInnis
[Chairman of the Subcommittee] presiding.
STATEMENT OF HON. SCOTT McINNIS, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF COLORADO
Mr. McInnis. The Subcommittee on Forests and Forest Health
will come to order. We are meeting today obviously to hear
testimony on the Deep Creek Wilderness bill.
I appreciate the understanding of the witnesses who have
traveled so far. I see several of them there, Chris, Steve, a
number of others, commissioners that have come down, John, Tom,
et cetera. You can have a complete understanding, and I am sure
that you will probably experience it on your way home, in
regards to the airplanes.
By the way, my rate to Denver, my flight costs to Denver
was $165, and Denver to Grand Junction was $365. So we out in
there, the rural areas, really do get it stuffed to us.
But we will get back to the bill and off the airlines.
Anyway, I do appreciate everybody making the effort to come out
here. I am delighted that we are able to finally bring this
today for a hearing. This is the first step in what I hope will
be a quick journey of H.R. 2963 through the House of
Representatives en route to the Senate and eventually to the
President's desk.
I introduced this legislation late last month and called
this hearing today in hopes of seeing it signed into law before
the end of the 107th Congress next year. Prior to September
11th, actually I was in hopes that we could get it done before
December of this year, but that does not appear to be likely.
I look forward to working with my colleagues on the
Subcommittee on Forest Health, the BLM, my friends and
constituents in western Colorado, including many of whom are
here today.
As our witnesses are no doubt aware, Deep Creek has a very
special place in my heart, as I know it does in those of you
that have come today and the people that you represent. I grew
up literally a matter of minutes away from the area and spent a
great deal of time hiking there as a boy. In fact, most of my
observations of the canyon were from the top looking down. They
were not from the ability to go into the canyon, although I
have been up into the canyon and climbing up.
So I think it is a very critical point in this bill that we
allow other people the same privilege that I had, and that was
that I had motorized access, and I was able to go to the rim of
the canyon and look down into that canyon and see what it was.
If I would have been restricted as a small boy to take
horseback up in there, I probably wouldn't have been--I
probably would have been 14 or 15 before I would have had the
capability to ride a horse up into that country and certainly
to hike up into that country. To see what I saw as a very young
man would not be possible without the access that I intend to
protect with this bill, which is the result of the compromise
that we have put together for this bill.
In fact, when my scheduled allows, I like to head back up
there and enjoy the majestic views of Deep Creek's wild and
pristine forest. I want to add one other sentence here; that
is, that most people that are going to get to see Deep Creek
are not going to be the hearty young people. Most of the people
that get to see Deep Creek are the ones that are going to be
able to have motorized access to get up to the edge and look
down into this beautiful area, or those who can afford to
charter an airplane and circle Deep Creek, which I have done on
several occasions. I think it is very important because of the
beauty, the intense beauty of this land, that as many people as
possible be allowed to have the privilege that all of us have
had, and that is that kind of observation.
These lands are special for reasons that are far more
important than the relative proximity to my hometown. Deep
Creek is truly one of Colorado's wildland wonders. It is a
natural treasure that deserves special congressional
protection. When our predecessors on this Committee first
drafted the Wilderness Act over three decades ago, there is no
question it had places like Deep Creek in mind.
Together we begin the process of considering wilderness
designation for this special place. Like any proposed
wilderness designation, this is not without some complications.
There are some who would like to continue to expand the
boundary substantially beyond the upper rim of the Deep Creek
Canyon as called for in H.R. 2963, this in spite of the fact
that in 1998 some of Colorado's most respected conservationists
outlined a wilderness plan for Deep Creek with boundaries
nearly identical to those proposed in my legislation.
I should add that this piece of legislation is the result
of lots of compromise on behalf of lots of people, and I
realize that on one side or the other there will be people who
want to continue to move the goal line. But it is my intent to
stay with the compromise that this bill reflects, and, again,
to be repetitive, but nonetheless important, that these comply
with the boundaries that are almost identical to those of the
1998 so-called wilderness plan.
In addition, there are some who are less than pleased with
the tough language in the bill protecting Colorado water
rights. Clearly my precedent has been in the past, and let me
make it clear, I am willing to listen to substantial
suggestions on this point, but I am not going to throw the door
wide open. In fact, I will even go further than that. When it
comes to water rights, that door will remain tightly closed.
The water rights of Colorado are the primary issue that I am
concerned about on any wilderness designation. And, as many
people know, water in Colorado is equivalent to blood, and once
we give those water rights or endanger those water rights in
any manner whatsoever in the future, it will be next to
impossible to reclaim them.
That said, I look forward to working with those who have an
interest in the water rights issue, including the State of
Colorado, the Forest Service and our witnesses here today.
Finally, there are some who have raised concerns about the
Colorado Army National Guard continuing its years-long practice
of conducting aerial training exercises on Deep Creek under
wilderness designation. It is my understanding from all sides
that the Colorado National Guard has been both an able and
conscientious steward of this resource during its time training
there, and has conducted its exercise in a manner that has no
appreciable impact on the landscape. This training is
absolutely critical and as should clearly be demonstrated by
the sacrifice that people are making today in mountainous
terrain in Afghanistan. Who knows, some of those people may
have got their training in our Colorado mountains.
I can tell you that during my tenure in Congress, I have
never had one complaint, never a letter, never a phone call,
never a conversation complaining against the Colorado Air
National Guard in regards to their flight service in Eagle. In
fact, every time we have a plane missing up there, we need a
rescue, they are the first people we call to go in and do
rescue and assist us with the helicopters, and fortunately they
have been very good about doing that.
While disagreement over these issues is real, although I
think really the disagreement that we have here is pretty
minimal, I nevertheless am confident that the good faith
negotiations that we have put forth so far have yielded a
consensus-oriented agreement in a bill, just as we did last
year with our Colorado Canyons Wilderness bill and just as we
did most recently with Mr. Udall's James Peak legislation.
I believe our sheer desire to see this natural jewel
preserved and protected will ultimately prevail.
I thank our witnesses for coming today and I look forward
to their comments.
[The prepared statement of Mr. McInnis follows:]
Statement of Honorable Scott Mcinnis, Chairman, Subcommittee on Forests
and Forest Health
I'm delighted to convene this legislative hearing on HR 2963, the
Deep Creek Wilderness Act. Today's hearing is the first step in what I
hope will be a quick journey for HR 2963 through the House of
Representatives en route to the Senate and eventually to the
President's desk. I introduced the legislation late last month, and
called this hearing today, in hopes of seeing it signed into law before
the end of the 107th Congress next year. I look forward to working with
my Colleagues on the Subcommittee, the Forest Service, the BLM and my
friends and constituents in western Colorado -- including John, Tom,
Chris and Steve who are here to testify today in pursuit of that
objective.
As our witnesses are no doubt aware, Deep Creek has a special place
in my heart, as I know it does in their's. I grew-up literally a matter
of minutes away from the area, and spent a great deal of time there
hiking as a boy. In fact, when my schedule allows, I still like to
head-up there and enjoy the majestic view of Deep Creek's wild and
pristine forests.
But these lands are special for reasons far more important than
there relative proximity to my hometown. Deep Creek is truly one of
Colorado's wildland wonders; it's a natural treasure that deserves
special Congressional protection. When our predecessors on this
Committee first drafted the Wilderness Act over three decades ago,
there's no question that it had places like Deep Creek in mind.
Today, we begin the process of considering Wilderness designation
for this special place. Like any proposed Wilderness designation, this
one is not without some complications. There are some who would like to
expand the boundaries substantially beyond the upper rim of Deep Creek
canyon, as called for in HR 2963. This, in spite of the fact that in
1998 some of Colorado's most respected conservationists outlined a
Wilderness plan for Deep Creek with boundaries nearly identical to
those proposed in my legislation. I would submit that if it was good
enough in 1998, it's good enough today. In addition, there are some who
are less than pleased with the tough language in my bill protecting
Colorado water rights. Let me be clear: I am willing to listen to
substantive suggestions on this point, but I'm not going to throw the
door wide-open to a host of new federal reserved water rights in
conjunction with this designation. That said, I look forward to working
with those who have an interest in this water rights issue including
the State of Colorado, the Forest Service and our witnesses here today
in working out a solution that hopefully I say hopefully is agreeable
to all sides. Finally, there are some who have raised concerns about
the Colorado Army National Guard continuing its years-long practice of
conducting aerial training exercises in Deep Creek under a Wilderness
designation. It's my understanding from all sides that the Colorado
National Guard has been both an able and conscientious steward of this
resource during its time training there, and has conducted its
exercises in a manner that has had no appreciable impact on the
landscape. During this hour of international conflict, I think the last
thing any of us want is to undermine the training operations of our
military, particularly training exercises like those in question here
that closely replicate the rugged and harsh conditions now confronting
our military in its conflict abroad.
While disagreement over these issues is real, I'm nonetheless
confident that good-faith negotiations will yield a consensus-oriented
agreement, just as it did last year with our Colorado Canyons
Wilderness bill and just as it did most recently with Mr Udall's James
Peak legislation. I believe our shared desire to see this natural jewel
preserved and protected will ultimately overcome any and all
disagreements we encounter along the way.
I thank our witnesses for making the trip to Washington for this
hearing and I look forward to hearing their comments today.
______
Mr. McInnis. Mr. Udall, would you like to make an opening
statement for the Minority?
STATEMENT OF HON. MARK UDALL, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF COLORADO
Mr. Udall of Colorado. Thank you, Mr. Chairman.
First I would ask unanimous consent that the statement of
the Ranking Member Mr. Rahall be included in the record.
Mr. McInnis. Certainly.
[The prepared statement of Mr. Rahall follows:]
Statement of the Hon. Nick J. Rahall, a Representative in Congress from
the State of West Virginia
H.R. 2963, the Deep Creek Wilderness Act, introduced by
Subcommittee Chairman Scott McInnis, would provide protection to a
beautiful, spectacularly deep canyon. Yet, protection for the 8,000-
acre narrow gorge will not be permanent if nothing is done to protect
the uplands and watershed.
Another bill, H.R. 944, introduced by Representative Diane DeGette,
would designate 22,170 acres in Deep Creek as wilderness, almost three
times the acreage in H.R. 2963. Unfortunately, H.R. 944 is not the
subject of this hearing, even though it was introduced in March, six
months before the Chairman's bill was introduced.
The Colorado Wilderness Network, comprised of environmental
organizations, businesses, and local governments, supports the acreage
designation for Deep Creek in Representative DeGette's bill. I am
advised that snowmobiling in some areas is the only existing use that
would be prohibited if 22, 170 acres were designated as wilderness. I
also understand that discussions are underway between the Colorado
Wilderness Network and snowmobiling interests to craft a compromise. I
encourage these discussions to continue so that we can enact a bill
that enjoys widespread support.
I also would like to highlight three additional concerns with the
bill:
The first has to with overflights and landings in the proposed
wilderness area. Section 5 would codify a memorandum of understanding
between the Forest Service, Bureau of Land Management and Colorado Army
National allowing for overflights in proposed wilderness. As the Forest
Service points out in its testimony, the Colorado Army National Guard
conducts training exercises in the Deep Creek area between Thanksgiving
and Memorial Day. Not only does the Colorado Army National Guard fly
over the proposed wilderness area, but it also lands in Deep Creek as
many as four times a week. Routine helicopter landings are
inappropriate in a wilderness area. I look forward to working with the
Forest Service, BLM and Colorado Army National Guard to more fully
understand the use of the area. We need to find out if there are other
appropriate areas for such exercises to occur.
H.R. 2963 also expressly denies the Forest Service and BLM any
reserved water right for the wilderness area. While there are no water
rights in the proposed wilderness, there are perfected and conditional
water rights upstream and on streams tributary to Deep Creek that have
the potential to affect the proposed wilderness. Future water uses
upstream have the potential to dewater the proposed wilderness. In its
testimony, the Forest Service recommends that we work with the Colorado
Water Conservation Board to develop language to protect the water
resource values of the proposed Deep Creek wilderness. I think this is
a good suggestion and look forward to working on this.
Finally, several provisions of the bill are confusing and
contradictory to the establishment of the area as wilderness. The bill
appears to be a cut and paste of wilderness legislation and national
conservation area legislation. Standard language ensuring that the
wilderness lands designated are managed consistent with the Wilderness
Act of 1964 is not used in Section 5. We need to ensure that the bill
is properly drafted before we move forward.
We need to enact legislation that provides meaningful protection to
this spectacular area; this bill as introduced does not. I look forward
to working with the sponsors and others to craft legislation that we
can all support.
______
Mr. Udall of Colorado. I just want to be very brief,
because I want to hear the testimony of the witnesses. I wanted
to welcome my fellow Coloradans who are here. Your
understanding and expertise in dealing with this beautiful area
is going to be very helpful as we move ahead.
I do want to educate myself further about some of the
details of the legislation and look forward to asking some
questions so that I can understand it better, and I want to
work with everybody involved to resolve any problems and see if
we can find a way to give appropriate additional protection to
these lands.
With that, Mr. Chairman, I would yield back.
Mr. McInnis. Thank you. We will go to our witnesses. We
have two panels today, and, first of all, Abigail Kimbell, our
Acting Associate Deputy Chief. She came from Colorado.
Thank you very much. I should have noticed you. I
appreciate your service, by the way. Thank you for your
efforts, and you may proceed.
As you know, on this Committee we have a 5-minute rule, and
in light of the fact that we are going to have votes here
pretty soon, I would ask that people respect that rule, and
that would also allow some questioning by the panel.
Thank you again. You may proceed.
STATEMENT OF ABIGAIL KIMBELL, ACTING ASSOCIATE DEPUTY CHIEF,
USDA, FOREST SERVICE
Ms. Kimbell. Thank you, Congressman.
Mr. Chairman, members of the Committee, thank you for the
opportunity to discuss H.R. 2962, the Deep Creek Wilderness
Act. We appreciate the Committee's interest in protecting the
unique resources in Deep Creek.
Deep Creek is located on lands managed by the United States
Forest Service and the Bureau of Land Management. In 1995, the
Forest Service and the Bureau of Land Management issued a joint
determination that Deep Creek was eligible for designation
under the Wild and Scenic Rivers Act.
We acknowledge wilderness designation for Deep Creek as
being consistent with those recommendations that Deep Creek be
managed as a wild river. Deep Creek has long been recognized
for outstanding features such as the ones you mentioned, and
these features were created or exist because of riparian and
water-related values. These include high-quality, scenic,
natural and pristine canyon landscape and recreation and
geologic values associated with cave formation in the canyon.
Deep Creek is a perennial stream with flows that originate
mainly from snow in upper elevations of its watershed. A
statewide survey conducted in 1993 by the Colorado Natural
Heritage Program identified Deep Creek as containing one of the
State's most pristine, high-quality occurrences of significant
riparian communities, including many rare plant species.
Clearly the water that flows in Deep Creek is a key element in
the integrity of the ecological system and a key feature of the
area's scenic qualities and recreation opportunities.
We are aware of existing perfected water rights and
conditional water rights. These rights upstream from the
proposed wilderness exceed the estimated average annual flow
and even the observed peak flow on this stream. We recommend
that H.R. 2963 be amended to require monitoring of Deep Creek
flows, and to work with the Colorado Water Conservation Board
to protect the water and flow-dependent values of the proposed
Deep Creek Wilderness.
As you are aware, the Colorado Army National Guard is
authorized, under a 1987 memorandum of understanding, to
conduct aerial navigational training maneuvers over Deep Creek.
These occur primarily between Thanksgiving and Memorial Day and
often include landing helicopters within the proposed Deep
Creek Wilderness up to four times a week. We are always
concerned with nonconforming uses. We really appreciated that
section 5(d)(2)((B) specifically recognizes that the MOU could
be modified, and we are anxious to work closely with the
Colorado delegation and the Colorado Army National Guard to
identify needed changes.
We look forward to working with the Committee and the
Bureau of Land Management to develop a map with manageable
boundaries for the Deep Creek Wilderness prior to markup of
H.R. 2963. We would like to work with the Committee and staff
on other suggested edits.
And I want to thank the Congressman for his participation
in the dedication of the Spanish Peaks Wilderness. You were
involved from the very start.
[The prepared statement of Ms. Kimbell follows:]
Statement of Abigail Kimbell, Acting Associate Deputy Chief, National
Forest System, Forest Service, United States Department of Agriculture
Mr. Chairman and members of the Committee, thank you for the
opportunity to discuss the views of the department on H.R. 2963, the
Deep Creek Wilderness Act. I am Abigail Kimbell, Acting Associate
Deputy Chief for the National Forest System, USDA-Forest Service. We
appreciate the Committee's interest in protecting the unique resources
in Deep Creek.
Deep Creek is located in the State of Colorado largely within the
White River National Forest and on lands managed by the Bureau of Land
Management. In 1995, the Forest Service and the Bureau of Land
Management issued a joint determination that Deep Creek was eligible
for designation under the Wild and Scenic Rivers Act. All the
alternatives considered in the draft White River National Forest Plan
Revision recommend that this area be managed as a Wild River eligible
for Wild and Scenic River designation. These recommendations were
developed after thorough public involvement and with widespread public
support.
We acknowledge wilderness designation for Deep Creek as being
consistent with these recommendations that Deep Creek be managed as a
Wild River eligible for inclusion in the Wild and Scenic River System.
Wilderness designation is also consistent with the current Deep Creek
inventoried roadless area wilderness evaluation that rated the area
high in its opportunities for solitude, naturalness, and manageability
as wilderness. We have some concerns, however, with specific provisions
of H.R. 2963 as it is presently drafted.
Deep Creek has long been recognized for outstanding features and
special qualities that were created or exist because of riparian and
water-related values. These include high quality natural communities;
scenic, natural, and pristine canyon landscapes; and recreational and
geologic values associated with cave formations in the canyon. Deep
Creek is a perennial stream with flows that originate mainly from snow
in the upper elevations of its watershed. Its clear water, relatively
high but stable flows, and diverse channel morphology provide good to
excellent aquatic habitat and riparian values. A statewide survey
conducted in 1993 by the Colorado Natural Heritage Program identified
Deep Creek as containing one of the State's most pristine, high quality
occurrences of significant riparian communities, including many rare
plant species. Deep Creek provides excellent habitat for re-
establishing a population of native Colorado River cutthroat trout.
Clearly, the water that flows in Deep Creek is a key element in the
integrity of the ecological system and a key feature of the area's
scenic qualities and recreation opportunities. We recommend that
Section 2(b), Purpose, recognize water and flow dependent resources as
important resources to ``conserve, protect, and enhance.''
A brief analysis of the current water rights in the Deep Creek
drainage shows that none of these existing rights appear to be located
in the proposed wilderness, although there are water rights upstream
and on streams tributary to Deep Creek that affect or have the
potential to affect flows in the proposed wilderness. Deep Creek's
waterway is largely unmodified.
We are aware of existing perfected water rights and understand the
status quo of how water is withdrawn from this system. We are also
aware of conditional water rights. These rights, upstream from the
proposed wilderness, total 390 cfs, and far exceed the estimated
average annual flow (50 85 cfs), the estimated high flows (100-200
cfs), and even the observed peak flow (250 cfs) on this stream.
Developing these conditional rights would impact streamflow and the
flow dependent resources that contribute to the uniqueness and the
value of Deep Creek. We recommend that HR 2963 be amended to require
monitoring of Deep Creek flows and, where necessary, to work with the
Colorado Water Conservation Board to protect the water and flow
dependent values of the Deep Creek Wilderness.
In addition, we recommend that HR 2963 be amended so the Forest
Service, working with the Colorado Water Conservation Board, has the
opportunity to protect the critically important water and flow
dependent resource values of the proposed Deep Creek Wilderness. We
would be pleased to work with the Committee in revising the section of
HR 2963 concerning water.
As you are aware, The Colorado Army National Guard is authorized
under a 1987 Memorandum of Understanding to conduct aerial navigational
training maneuvers over Deep Creek. These training exercises occur
primarily between Thanksgiving and Memorial Day and often include
landing helicopters within the proposed Deep Creek Wilderness up to
four times a week. It is unclear whether Section 5(d)(2) of H.R. 2963
allows these exercises to continue. We are concerned about allowing
such a non-conforming use to continue within a designated wilderness.
In this regard, we appreciate that Section 5(d)(2)(B) specifically
recognizes that the MOU may be modified. If HR 2963 is enacted, we
would work closely with the Colorado delegation and the Colorado Army
National Guard to identify needed changes.
The Wilderness Act of 1964 defines wilderness to be a place without
permanent improvements or human habitation. Forest Service policy is to
provide facilities and improvements only for the protection of the
wilderness resource. In order to protect the wilderness characteristics
of Deep Creek, the department suggests that Section 5(i) be clarified
to provide minimal interpretive facilities, such as information kiosks
or trailhead signs outside the wilderness boundary.
We look forward to working with the Committee and the Bureau of
Land Management to develop a map with manageable boundaries for the
Deep Creek Wilderness prior to markup of HR 2963.
We would like to work with the Committee and staff on other
suggested edits including recommendations that certain sections be
modified or deleted to avoid redundancy or possible confusion resulting
from multiple laws addressing the same issue.
Summary
In closing, we appreciate the Committee's interest in providing
present and future generations with the benefits of an enduring
resource of wilderness. We look forward to working with the Committee
and the Bureau of Land Management to address our concerns. Deep Creek
is truly a unique and special place that meets the criteria for
wilderness and wild and scenic river preservation, and is deserving of
protection for all Americans.
This concludes my prepared statement. I would be happy to answer
any questions you or other members of the Committee may have.
______
[An attachment to Ms. Kimbell's statement follows:]
[GRAPHIC] [TIFF OMITTED] 75726.001
Mr. McInnis. I am going to go ahead and begin with a couple
of questions and a couple of points I want to make.
As you know from the language that with the Army Air
National Guard, that it requires agreement by both sides for
modification of the agreement. It is my intent to preserve
their right to utilize that, but balance it out with the
modification--the MOU so either side has to get an approval of
the other.
The other--and I am not aware of any damage or any kind of
negative impact on Deep Creek's areas as a result of these
helicopter training exercises. Are you, other than the fact
that you may not--other than the fact that the Forest Service
doesn't like that, that they are a noncompliant use?
Ms. Kimbell. The Wilderness Act generally precludes the
landing of aircraft within wilderness areas.
Mr. McInnis. You have not had any indication of any damage
as a result of those helicopters?
Ms. Kimbell. No, I have not.
Mr. McInnis. The other thing, then, I will move on to my
colleagues up here. We are talking about these water rights.
Are you aware--I mean, are the water rights of the Colorado
Water Conservation Board--do they have water rights up there?
Have you looked at that?
Ms. Kimbell. Yes, I have.
Mr. McInnis. I believe that they have some in-stream water
rights in there as well.
Ms. Kimbell. Yes, sir.
Mr. McInnis. That currently exist.
Ms. Kimbell. The CWBC has existing flows designated.
Mr. McInnis. My point is, I just want to make sure that
other people that read this testimony are aware that we have
taken conscientious efforts in the past toward the preservation
of that area in regards to the water, but we have just got to
be very careful as to not endanger any water rights for the
people of Colorado.
With that I will go ahead and yield to Mr. Udall if he has
any questions.
Mr. Udall of Colorado. Thank you, Mr. Chairman. I do have a
couple of questions here.
I think the Chairman discussed aircraft use in the
wilderness area. Some of the lands covered by the bill are on
forestlands, of course, managed by the Department of
Agriculture, and part of the lands, as I understand it, are
managed by the Bureau of Land Management in the Secretary of
Interior's portfolio. Is that the case as you understand it?
Ms. Kimbell. That is correct.
Mr. Udall of Colorado. Would each agency continue to manage
their portion after the enactment of the bill?
Ms. Kimbell. As there is nothing in the bill to preclude
that, yes.
Mr. Udall of Colorado. That is the starting point if the
bill were to become law in regards to the management regime?
Ms. Kimbell. Yes.
Mr. Udall of Colorado. Do you see any problem with that
from your perspective? Do we have examples of where that has
worked effectively?
Ms. Kimbell. Actually we do have examples where that works
very effectively. And, in fact, two agencies conducted a wild
and scenic river study on Deep Creek several years ago and came
up with a joint management plan for Deep Creek with the joint
recommendation.
Mr. Udall of Colorado. My colleague--and I don't want to
steal her thunder, but she was asking me a question about
nonconforming uses in wilderness areas, and if we were in this
situation to allow a so-called nonconforming use, we may want
to characterize it in other terms. Does that, in your opinion,
then open the door for those kinds of uses to be opened and
extended to other existing wilderness areas?
Ms. Kimbell. That is at Congress' discretion. And the bill
as it is written right now addresses specifically the Colorado
Army National Guard, and it doesn't address any other
nonconforming uses as we read the bill.
Mr. McInnis. Mr. Udall, I may add that what it does is just
the opposite, in my opinion, and, in fact, allows areas that
come into wilderness, if you think that community up there
would be supportive of this as a wilderness area if they found
out that we were going to shut out these helicopters under
current circumstances--it is the same thing with the Colorado
Canyons last year. We had several different uses. We had
mountain bikes. We had horseback. We had river rafters. And
under the perfect theory, these are all nonconforming uses for
the natural state of that, but because as we were able to bring
those in as managed uses, we were able to put it into the
conservation area. So I think, in fact, allowing this to happen
is what allows us to get this.
I can tell you this. If we--at least as long as I am
Chairman, if we tell these helicopters to get out of there
today, Deep Creek would not become a wilderness area.
Mr. Udall of Colorado. Section 5 of the bill says that the
only uses to be permitted in the wilderness area will be ones
that the relevant agency, either the Forest Service, or the BLM
as we discussed earlier, determines will further the purposes
for which the Wilderness Act is established.
Doesn't that Act already specify which uses are permitted
in wilderness areas? And would this part of the bill allow
either agency to allow some uses that otherwise would be
prohibited under the Wilderness Act?
If not, what would be the effect of this provision? I
apologize for asking you three questions that quickly.
Ms. Kimbell. The bill references the Wilderness Act
specifically, and the Wilderness Act allows for some uses and
doesn't allow for other uses, and unless specifically specified
in the bill, the Wilderness Act would prevail. Those uses that
are permitted under the Wilderness Act would be uses that would
be considered by the managing agencies.
Mr. Udall of Colorado. So unless the bill specifically
says so, the Wilderness Act would then determine the activities
in these areas?
Ms. Kimbell. Yes. The Wilderness Act would help guide the
agency in developing the management plans.
Mr. Udall of Colorado. Section 5(h) deals with non-Federal
land holdings. Are there any non-Federal land holdings within
the boundaries of the proposed wilderness area?
Ms. Kimbell. Not within National Forest lands, no.
Mr. Udall of Colorado. Do you know by chance about the BLM
lands, if there--.
Ms. Kimbell. I don't know. That the--the maps that were
provided didn't permit us to ascertain that.
Mr. Udall of Colorado. Okay. Thank you for your testimony.
Mr. Chairman, I yield back my remaining time.
Mr. McInnis. Ms. McCollum.
Ms. McCollum. Thank you, Mr. Chair. My question wasn't--to
Mr. Udall was to understand a little better the history of the
definition of the word "wilderness" here, because definitions
truly have a lot of power. And so my concern is not that we
continue to allow the Guard possibly to use this as training
exercises, Mr. Chair. That is not the dispute that I have. The
dispute is using the term "wilderness," calling this a
Wilderness Act and including that in, and what does that do 5
or 6 years from now as there is more pressure on some of our
more traditional use of the term "wilderness" as we use it in
Minnesota to say, you know, the Wilderness Act allows this to
happen in this State and this to happen in that State. And so
there is no reason why we shouldn't be opening up with the
pressures for the wilderness to be inclusive in Minnesota to
allow these activities.
So that is where my question comes, Mr. Chair. So I am just
kind of wondering if there isn't maybe a more appropriate title
for the use of land. I was trying to kind of figure that out
off the record, but I will do it on the record. If you can be
help me with that, I would appreciate it.
Ms. Kimbell. Each wilderness area is designated only with
congressional action, and there is specific enabling
legislation. It is--even the Boundary Waters Canoe Area in
Northern Minnesota allows motorized uses. Some do; some do not.
But it has to be specified in the language in the legislation.
Ms. McCollum. And, Mr. Chair, maybe I could ask you--Mr.
Udall or Ms. Kimbell or someone from staff can help me out
later. I would--I am kind of curious then to how many
wilderness areas have helicopters in them, or, you know, we
have two portages up north, and they aren't working, so nobody
is really using the motors in them anyway.
Because I think I want to understand the consequences of
enabling language in certain statutes and the potential for
that language to be referenced in lands. I will use the
Boundary Waters just for an example. People would really like
to helicopter in or something like that 20 or 30 years from now
and say, well, Congress approves.
Mr. Chair, maybe you can help me. I am not opposed to the
helicopters being there. I just want to make sure that we don't
set a precedent that you and I didn't intend.
Mr. McInnis. Well, the precedent that has been set, Ms.
McCollum, is that when Congress originally put together, from a
historical basis, the opportunity to put wilderness areas, they
allowed that flexibility built within the statute for people to
customize these areas.
For example, in Alaska, you can't move in Alaska without an
aircraft. So you will find out in their national parks and
things like that, they have exemptions for aircraft to land in
places that we would never think of allowing in your parks,
because you can access your parks. In Alaska you can't do it,
there aren't roads up there, et cetera, et cetera.
It is the same thing here. Wilderness, we actually have
much more areas--if you are interested in wilderness
accumulation, you are actually having much more accumulation of
wilderness because there is some flexibility to put in these
different uses when it is originally drafted by Congress. Once
this is locked into Congress, then it is almost impossible to
change in the future. So that flexibility was intentionally put
in by Congress, and the only precedent it sets is, hey, when
you put together wilderness, you better realize that it is a
permanent lock, albeit Congress could overturn it, but in
reality they won't.
So you better get everything right when you first put it
together and take into consideration everybody's needs up
there, which is exactly what we have done and come up with this
compromise bill on Deep Creek.
We better move on. We are going to get hit with votes
before we have our other witnesses.
Mr. Udall of Colorado. Would the gentlelady yield?
Just for the record, Mr. Chairman, in the special
provisions section of the Wilderness Act it says that, section
D, the following special provisions are hereby made. Within
wilderness areas designated by this act, the use of aircraft or
motorboats where these uses have already become established may
be permitted to continue subject to such restrictions as the
Secretary of Agriculture deems desirable. In addition, such
measures may be taken as may be necessary in the control of
fire, insects and diseases, subject to such conditions as the
Secretary deems desirable.
That is an important part of the Wilderness Act, and I
think we need to continue our discussion as to what that really
means not only when it comes to this legislation, but other
wilderness legislation pending.
Mr. McInnis. Mr. Udall, what that applies to is if you have
a wilderness area currently in existence right now that does
haven't an exemption, for example firefighting, then that is
what that applies to.
All we need here are 218 votes to customize a wilderness
bill. That is exactly what we are doing with Deep Creek, for
example. That is exactly what we did with the Colorado
Conservation Area. There is no prohibition in statute that
says, hey, as a Congress you can't create a wilderness area,
that says you allow portage or whatever you call it up in
Minnesota, or you allow planes to land in Alaska or whatever,
et cetera.
Mr. Udall of Colorado. I think the point I am trying to
make is there is some consistency between what you are
proposing and at least what the initial clauses and conditions
in the Wilderness Act stipulated.
Mr. McInnis. Thank you, Abigail. We appreciate it very
much. We need to move on so we can get our second panel.
Welcome, Mr. Inslee, the Ranking Member. We are going to
move on. Your remarks were introduced, put into the record.
Mr. McInnis. Our second panel, Mr. John Martin. John, thank
you very much. I know that you have put a lot of time and
effort into this, lots of effort. I appreciate that.
Chris Treese. I don't know anybody in Colorado that is
relied more upon, at least in western Colorado, for water
expertise than your organization and you, frankly.
Steve, I wish you would have been at the Spanish Peaks
dedication. Your name was used in very complimentary fashion.
And, Abigail, I want you to note that your compliments on
the Spanish Peaks, that gentleman right there, Steve Smith, had
a lot to do with it over time. And I want to just publicly
commend you as you were recognized appropriately at the Spanish
Peaks dedication.
And Tom, I continually am appreciative of the efforts you
make to make this work. I know that the Army National Guard,
the helicopter landings, the water issues all of that. So all
four of you have been involved in a very intricate fashion in
putting this bill together, and I appreciate that courtesy.
So why don't we go ahead, Commissioner Martin. Why don't
you begin, and you may proceed.
STATEMENT OF JOHN MARTIN, GARFIELD COUNTY COMMISSIONER, STATE
OF COLORADO
Mr. Martin. Thank you, Mr. Chairman. I appreciate it. I
also am humbled by the opportunity to participate in today's
hearing, especially in light of current events facing our
world.
My subject of discussion is an area in Garfield and Eagle
Counties of Colorado. Deep Creek Canyon is truly a wilderness
in its purest form spanning over 8,000 acres. For Garfield
County with a population of 43,000, a land border of 2,957
square miles, or approximately 1,892,000 plus acres, which, I
might add, 1,134,000 acres are federally controlled land, and
also with the history of peoples' conservative approach to land
use, the consideration of another 8,000 acres of federally
controlled wilderness may sound almost unbelievable, but as
Chair of the Board of County Commissioners of Garfield County
and the spokesperson for the towns and cities of Garfield
County, I ask you, hear our unified voice. Deep Creek is a
canyon unmarred by man or machine.
Deep Creek is just that, a nearly inaccessible canyon of
unbelievable beauty, and a canyon, when viewed from its rims,
which rings true as wilderness. The few roads on the fringe
allow access by cavers, four-wheel-drive vehicles, hikers,
horse riders, photographers, naturalists and snowmobile riders.
The canyon is heavily wooded with very rugged carved limestone
walls, and only the bravest hikers find themselves in the lower
trail.
Garfield and Eagle County citizens are not the only people
aware of Deep Creek Canyon's wilderness qualities. The public
lands Committee for the Colorado Counties, Inc., a nonprofit
statewide organization of Colorado county commissioners with
membership in 61 of the statewide 64 counties of Colorado
support the Deep Creek Wilderness, as does the Colorado River
Conservation Commission, the local offices of BLM, the U.S.
Forest Service, Division of Wildlife, our State
representatives, and our State senator.
Also, I might add that a large landowner adjoining Deep
Creek also supports the wilderness designation.
The approach that Garfield and Eagle County took to present
this request for its proper title for Deep Creek was to take a
single area, review the qualities and the size, seek the input
of our citizens to see if there was public interest, to allow
each local government to ask questions and supply the needed
support before moving forward. The next step was to involve the
users and the landowners, gaining their input and support.
Finally, we consulted with the resource managers, the
protectors, the users, and gathered their support to present to
our local Representative, Congressman Scott McInnis, to allow
him and his staff to review the findings and have him help us
seek the proper title for Deep Creek Canyon.
Now we ask you to support this proper title and proclaim
Deep Creek Canyon as a wilderness. Thank you.
Mr. McInnis. Thank you, Commissioner.
[The prepared statement of Mr. Martin follows:]
Statement of John Martin, Commissioner, Garfield County Board of County
Commissioners, Glenwood Springs, Colorado
I appreciate the opportunity to participate in this hearing today,
especially in light of the current events facing our world.
My subject of discussion is an area in Garfield and Eagle Counties,
of Colorado. The area, Deep Creek Canyon, is a true wilderness in the
purest form, spanning over 8000 acres.
For Garfield County, with a population of 43,000, a land border of
2,957 square miles or approximately 1,892,209 acres, of which 1,134,373
acres are Federally controlled lands, as well as our people's
conservative approach to land use, the consideration of another 8000
acres of Federally controlled Wilderness may sound unbelievable. But,
as chair for the Board of the County Commissioners and the spokesperson
for the towns and cities of Garfield County, I ask that you hear our
unified voice. Deep Creek is a canyon unmarred by man or machine. Deep
Creek is just that, a nearly inaccessible canyon of unbelievable
beauty, and a canyon, when viewed from its rims, which rings true as
Wilderness. The few roads on the fringes allow access by cavers, four-
wheel drive vehicles, hikers, horse riders, photographers, naturalists,
and snowmobile riders. The canyon is heavily wooded with very rugged
carved limestone walls. Only the bravest of hikers try to follow the
canyons lower trail.
Garfield and Eagle County citizens are not the only people aware of
Deep Creek Canyon wilderness qualities. The Public Lands committee for
Colorado Counties inc., a nonprofit statewide organization of
Colorado's county commissioners, with membership in 61 of the 64
counties of Colorado, supports Deep Creek Wilderness, as does the
Colorado River Commission, local offices for the Bureau of Land
Management, Forest Service, and Division of Wildlife, our local State
Representatives and State Senator. The large landowner adjoining Deep
Creek also supports the Wilderness designation.
The approach Garfield and Eagle Counties took to present this
request for its proper title for Deep Creek, was to take a single area,
review the qualities and size, seek input from our citizens to see if
there was public interest, allow each local government to ask
questions, and supply the needed support before moving forward. The
next step was to involve users and landowners, gaining their input and
support. Finally, we consulted the resource managers, protectors, and
users, gathering their support to present to our local representative,
Congressman Scott McInnis, allowing him and his staff, to review the
findings and have him help us seek the proper title for Deep Creek
Canyon. Now, we ask you to support this proper title and proclaim Deep
Creek Canyon as a Wilderness.
Thank you.
______
Mr. McInnis. We are going to go ahead and go through the
whole panel, then open it up to the Committee for questions.
Mr. Treese, again, thank you for coming. You may proceed.
STATEMENT OF CHRISTOPHER J. TREESE, EXTERNAL AFFAIRS, COLORADO
RIVER WATER CONSERVATION DISTRICT
Mr. Treese. Thank you, Mr. Chairman. I am here today to
express support for H.R. 2963 on behalf of the Colorado River
Water Conservation District as a water policy body. I am here
principally to speak to the water-related aspects of the bill.
However, I want to begin by expressing the board's
appreciation for your approach to a single area wilderness
legislation that allows each of the particular values and
concerns associated with the wilderness area to be addressed
within the legislation.
We also appreciate, and the board wanted me explicitly to
recognize, your prerequisite for local support before
considering designation legislation for new wilderness areas.
Deep Creek Wilderness proposed is not a headwaters wilderness
area, as has been the typical practice of wilderness areas
within Colorado. There are, as has been mentioned, both
conditional and perfected, that is, both existing and planned,
water development facilities upstream from the proposed
wilderness area. As such, careful and explicit language in this
bill is necessary to protect the property values associated
with those historical water rights.
H.R. 2963 has that language. We are very pleased with the
approach that you have taken, Mr. Chairman, in that language.
However, we also recognize that the legislative process is a
dynamic process, and there have, in fact, historically been
several approaches to resolving water-related issues. And we
pledge our continued support to you as well as the rest of the
delegation and the Congress to continue to work on the water-
related legislative language so that both water users, present
and future, and the wilderness values can be protected.
Mr. McInnis. Thank you, Mr. Treese. I appreciate it.
[The prepared statement of Mr. Treese follows:]
Statement of Christopher J. Treese, External Affairs, Colorado River
Water Conservation District, Glenwood Springs, Colorado
I want to thank Chairman McInnis for this opportunity to share the
Colorado River Water Conservation District's views regarding H.R. 2963,
the Deep Creek Wilderness Act.
The Colorado River Water Conservation District (``River District'')
is the principal policy body for the Colorado River within Colorado. We
are a political subdivision of the State of Colorado responsible for
the protection and development of the Colorado River basin's water
resources to which the State of Colorado is entitled under the 1922 and
1948 Colorado River compacts. The River District includes all or part
of 15 counties in west-central and northwest Colorado, including the
entirety of both Garfield and Eagle Counties in which the proposed Deep
Creek wilderness area resides.
Colorado River water is a scarce natural resource subject to
greater demands than supplies. As such, western water concerns have
been a major stumbling block for past wilderness legislation.
Historically, the protection of water resources in wilderness
legislation has taken a variety of forms, but water concerns have
consistently, and often significantly, delayed or completely thwarted
passage of previous wilderness legislation. This has been the history
of Colorado wilderness legislation despite the fact that the vast
majority of Colorado's wilderness areas, to date, have been headwater
areas and therefore not subject to the range of water-related concerns
that are associated with downstream wilderness areas.
Simply put, downstream wilderness designations not only preclude
water development within the designated area, but conspicuously
threaten all upstream water development potential unless precise water
language is included in the enacting legislation.
The River District commends Chairman McInnis for his approach to
address potential wilderness areas individually. The fact is that each
prospective wilderness area has unique qualities which may qualify it
for wilderness designation; concurrently, each area also has unique
concerns associated with wilderness designation. We concur with the
chairman that these area-specific concerns are best resolved through
discrete area wilderness legislation. We note the relatively swift
passage of the chairman's Spanish Peaks, Colorado Canyons and Gunnison
Gorge wilderness bills as evidence of the success of this legislative
formula. We also commend Congressman Udall's employment of this
approach to protect the James Peak wilderness area.Further, the River
District expresses its appreciation to the chairman for his steadfast
prerequisite that any proposed wilderness area have demonstrated local
support prior to wilderness legislation. While we recognize that
federal wilderness areas are a national treasure, the fact is that
wilderness areas have disproportionate impacts, both beneficial and
adverse, to the local economy and to those neighboring the proposed
areas.
Our specific concerns with the proposed Deep Creek wilderness
include protection of water resources and water rights. In the Deep
Creek area, there are both perfected and conditional water rights
upstream of the proposed wilderness area. That means that both existing
water uses and planned future uses that are not yet developed lie
upstream of the proposed wilderness boundaries. In fact, the River
District is the owner of a couple of those conditional rights, which we
hold in trust for present and future water users in Western Colorado.
Wilderness designation immediately downstream of these existing
property rights, without carefully crafted language to protect them,
would have a chilling effect on their development potential and
economic value. This is especially true of a proposed area such as Deep
Creek whose wilderness values are predominantly defined by the water
resource itself.
H.R. 2963, as introduced, includes wilderness boundaries that have
been carefully crafted to exclude current water development features
such as existing dams, diversions, and canals. Nevertheless, a
wilderness area immediately downstream of existing or planned water
developments presents clear operational and political challenges unless
those rights are specifically recognized in the enabling legislation.
The current language of H.R. 2963 does this.
The River District has been working with the chairman's office on
water-related solutions for a proposed Deep Creek wilderness
designation for some time. We strongly support the water language of
H.R. 2963 as introduced. However, we also understand the dynamic nature
of the legislative process and pledge to continue our efforts to
resolve water resource and water rights concerns to the mutual
satisfaction of both Western Colorado water users and the proposed Deep
Creek wilderness area.
______
Mr. McInnis. Mr. Smith, you may proceed.
STATEMENT OF STEVEN W. SMITH, ASSOCIATE SOUTHWEST
REPRESENTATIVE, SIERRA CLUB, REPRESENTING THE COLORADO
WILDERNESS NETWORK
Mr. Smith. Thank you, Mr. Chairman and members of the
Subcommittee, for this opportunity to discuss a well-deserved
wilderness protection for the Deep Creek area near my home in
Glenwood Springs, Colorado. My name is Steve Smith. I am
associate Southwest regional representative for the Sierra
Club, speaking today on behalf of the entire organization and
the other members of the Colorado Wilderness Network, a
coalition of 300 environmental groups, businesses and local
governments who support the statewide citizens wilderness
proposal, which includes Deep Creek. A list of those supporters
is included in the Committee members' materials. I have also
provided letters from an adjacent landowner, two professional
Deep Creek outfitters, and three local governments expressing
their support for a larger Deep Creek Wilderness.
We appreciate your introduction of this legislation, Mr.
Chairman, that will protect the remarkable beauty, the
distinctive geography and the remote ruggedness of this true
wilderness. Your personal familiarity with the area and your
appreciation of that beauty are key to helping Congress
understand the significance of the place and how overwhelmingly
suitable it is for addition to the National Wilderness
Preservation System. Meanwhile your ability and willingness to
consider diverse points of view and then help bring them
together into mutually agreeable legislation has helped secure
wilderness designations at Blackridge Canyon, Spanish Peaks,
and soon, we hope, at James Peak, all in Colorado.
We need your assistance again, Mr. Chairman, to rework H.R.
2963 into legislation that will preserve the striking beauty of
the Deep Creek area while protecting the interests of those who
live and work nearby, and without diminishing the foundation
protections provided by the Wilderness Act itself.
I respectfully submit that this bill in its current form
does not quite accomplish all three of those things. Several
portions of H.R. 2963 seem to restate existing law or to
confirm existing administrative documents. Some of the bill's
provisions on wilderness management, rights of way, motor
vehicle use, grazing, and water and other topics are in some
cases a little confusing, at least to my limited understanding,
and in others may actually conflict with the specifics of
existing law or contracts. These portions should either use
more precise references to that existing documentation or be
removed from the bill in favor of relying on those sources
directly.
Today I would like to highlight three specific concerns
about the bills provisions: wilderness size, water, and
aircraft overflights. Deep Creek's gorge and cascading streams
are the most immediately apparent highlights and attractions of
the proposed wilderness, and preservation of that gorge is
certainly paramount. There are other lands, however, and
streams that cross them that both help protect these salient
features and complete a true composite of wild landscape around
them. The uplands north and south of the central canyon rim as
well as the rolling meadows and ledges farther upstream to the
west where there is no obvious rim also need to be included in
this wilderness and can be without compromising nearby
nonwilderness uses.
In any case, we believe that the size of Deep Creek
Wilderness described in the bill is inadequate to properly
protect the area, or, in the upper regions, to provide a clear
and manageable boundary. We have several suggestions for
obviously expanding and, we think, improving that detail.
Water and water rights are also sensitive topics in
Colorado, no more so than in the context of wilderness
designation. In Deep Creek we believe there is a version of
water rights language that can be negotiated in order to assure
reliable protection for the lifeblood of this new wilderness,
while assuring continued beneficial use of water. We believe
specifically that the express denial of water rights protection
for the wilderness as included in the current version of H.R.
2963 does not accomplish that dual goal, and we will oppose
such a denial.
Other details of the bill's water rights provisions also
need refinement. We would be very pleased to work with you,
with the river district and with others to reach agreement on
changes to those.
Our coalition understands the need to maintain a well-
equipped and well-trained citizen military, and we support
reasonable use of public lands for military exercises. At the
same time, a wilderness designation must recognize and preserve
this area as a place without the structures or motorized
activities of any human endeavor, except in the case of utmost
and short-term emergency, as provided in the Wilderness Act, in
agency regulations on wilderness management, and in the
National Guard memorandum itself.
Specifically, military and other airborne activities over
Deep Creek should indeed stay over Deep Creek and must not
include landings inside the designated wilderness or motorized
travel across the land inside the wilderness. We believe that
other narrow steep canyons nearby, areas also included in the
memorandum of understanding, can provide similarly challenging
training opportunities.
Again, it is a pleasure to be engaged in this effort to
secure the recognition and protection of the outstanding
natural wonder that is Deep Creek. My enthusiasm for this
effort is enhanced by the fact that our own Congressman and
Chairman of this key Subcommittee has decided to help with this
effort. In these days of fear and necessary courage in the face
of some abominable human behavior, the solace of wilderness,
even the knowledge that it is out there preserved, is a key
part of our personal and national well-being.
Places like Deep Creek are the essentials of America the
Beautiful, a land that justifiably increases our pride and our
collective will to make the world a better, safer place.
Thank you again, Mr. Chairman and members of the
Subcommittee, for joining in this good work in behalf of
American wilderness.
Mr. McInnis. Thank you, Mr. Smith.
[The prepared statement of Mr. Smith follows:]
Statement of Steven W. Smith, Associate Regional Representative for the
Sierra Club, on behalf of the Colorado Wilderness Network
Thank you, Mr. Chairman and members of the Subcommittee, for this
opportunity to discuss well-deserved wilderness protection for the Deep
Creek area near my home in Glenwood Springs, Colorado.
My name is Steve Smith, and I am Associate Southwest Regional
Representative for the Sierra Club in Colorado. I am speaking today on
behalf of my organization and the other members of the Colorado
Wilderness Network, a coalition of 300 environmental groups,
businesses, and local governments who support additional wilderness
designations, including Deep Creek, in our state.
The Steering Committee for the Colorado Wilderness Network is
composed of representatives from Colorado Environmental Coalition,
Colorado Mountain Club, Sierra Club, The Wilderness Society, and
Western Colorado Congress.
We appreciate the Chairman's introduction of legislation that would
protect the remarkable beauty, distinctive geography, and remote
ruggedness of this true wilderness. His personal familiarity with the
area and his appreciation for its beauty are key to helping other
Members of Congress understand the significance of the place and how
overwhelmingly suitable it is for addition to the National Wilderness
Preservation System.
I have enjoyed a career of twenty-six years in environmental policy
and advocacy, including twelve years of service as Senior Congressional
Assistant to Congressman David Skaggs of Colorado. During that time, I
enjoyed working with Congressman McInnis and his staff on field
research, citizen negotiations, and legislative drafting that resulted
in wilderness designations for many spectacular parts of Colorado. The
most recent success that came from that time was celebrated just over
two weeks ago when the Chairman dedicated the new Spanish Peaks
Wilderness in southern Colorado.
We are now anticipating House action on another measure that will
protect much of the James Peak roadless area, along the Continental
Divide, as wilderness, another measure that the Chairman helped make
possible.
I mention these efforts and these particular areas because they
represent many months of discussions, negotiations, and compromise,
facilitated by Congressman McInnis, in efforts to provide the best
possible protection for important wildlands while attending to
legitimate interests of nearby citizens and users of public lands.
I believe that this same spirit of negotiation and patient
legislative creativity can produce good wilderness legislation for Deep
Creek. I offer for the subcommittee's consideration several points that
need particular attention in such negotiations. They include wilderness
area size and boundaries, protection for natural water flows in
wilderness, clarification of motorized use near the area, and a
collection of technical clarifications.
The first question of concern to us is the size and scope of a
wilderness designation for Deep Creek. Over the past nearly three
decades of citizen research and recommendations, our organizations have
found that including the largest expanse and variety of landscape
possible in a wilderness area is important to preserving the more
obvious natural features of the area.
In the case of Deep Creek, the deep gorge and cascading stream are
the most immediately apparent highlights and attractions of the
proposed wilderness, and preservation of that gorge certainly is
paramount, as the Chairman has often pointed out. There are other
lands, and streams that cross them, that both help protect those
salient features and complete a truly comprehensive example of wild
lands protection.
The uplands north and south of the canyon rim through the area's
midsection, as well as rolling meadows and ledges farther upstream to
the west also need to be included in this wilderness because they are
integral to its ecological health and, in the case of the portions
upstream of the gorge, do not include an obvious canyon rim to serve as
their boundaries.
The Colorado Wilderness Network has proposed a wilderness
designation for Deep Creek comprising 22,000 acres. This proposal
includes the variety of landscape I have mentioned, and it is bounded
by easy to locate natural and human-built features. By bounding the
area by Coffee Pot Road to the south and a national forest access road
to the north, the wilderness is readily defined on the ground.
Our proposal specifically leaves out of wilderness roads that are
actively used for motorized travel, including the boundary roads and
several spur routes that lead to canyon overlooks and camping sites. It
also leaves out of wilderness, and so open to ready access, existing
water diversion structures and routes that lead to them.
In recent weeks, our staff and volunteers have met with owners of
private property adjoining the Deep Creek area, with motorized
recreationalists, and with backcountry outfitters permitted to work in
and near the area, as well as biologists who understand the dynamics of
the greater Deep Creek ecosystem. As a result, we have learned of
several opportunities to modify our proposed boundaries in order to
accommodate uses incompatible with wilderness while still designating
key parts of the uplands and upstream meadows. We have, in turn,
secured support from these owners and users for our modified proposal.
In any case, we believe that the size of a Deep Creek wilderness
described in H.R. 2963 is inadequate to properly protect the area, even
for a so-called rim-to-rim designation. The area needs to be larger to
properly protect the wilderness resource and to afford functional
boundaries.
We will be very pleased to work with the Chairman and other members
of the subcommittee, and their staffs, to review the details of these
field investigations and conversations in order to craft a wilderness
boundary mutually acceptable to all involved.
Water and water rights are always sensitive topics in Colorado, no
more so than in the context of wilderness designations. In Deep Creek,
we again encounter the sensitive and contentious discussion of water.
As in the instance of boundaries, we believe that there is a version of
water rights language that can be negotiated for this legislation in
order to assure reliable protection for the lifeblood of this new
wilderness while assuring continued beneficial use of water.
We believe, specifically, that the express denial of water rights
protection for the wilderness, as included in Section 5(j)(3)(A) of
H.R. 2963 as introduced, does not accomplish that dual goal, and we
will oppose such a denial.
Some other particulars of the water language included in the bill
warrant discussion. In two locations, the ``Findings'' section of the
bill refers to water rights or facilities that are ``adjacent'' to the
proposed wilderness. That is not a term familiar to us, as we tend to
look at points of diversion and their attendant facilities as either
within, upstream of, or downstream of an area. Language protecting
continued exercise of legitimate water rights on Deep Creek or its
tributaries is certainly appropriate in wilderness legislation.
References to water rights or facilities that are in separate
watersheds are not appropriate or are, at best, confusing.
As another portion of the bill's ``Findings'' notes, it is possible
to provide for reasonable development of existing conditional water
rights outside the wilderness while protecting the wilderness. That
view should be more specifically represented in the implementation
sections of the legislation.
In Section 5(j)(4)(B), although essentially a restatement of
provisions already included in the Wilderness Act, is, in our view, a
helpful assurance that new structures will not be built in the
wilderness.
We appreciate the Chairman's decision to consider this area
individually for wilderness designation, thus allowing legislation to
be crafted in response to the physical and human use characteristics
unique to the area. This custom crafting is particularly important on
the question of water in proposed mid-stream wilderness areas.
However, the use in any one bill of inadequate or arbitrary water
language, such as the express denial of wilderness water protection,
makes more difficult negotiation of good water provisions in other
bills.
Colorado is blessed with a remarkable brain trust of water experts,
legal, hydrological, and environmental. Engaging the skills and wisdom
available in discussion of Deep Creek can provide a creative, and more
effective, approach to water protection and management there. We enjoy,
for example, a good working relationship with the staff and board
members of the Colorado River Water Conservation District. We will be
very pleased, with your permission and encouragement, to engage in
further discussions with them in pursuit of comprehensive and
protective water language that we might jointly present to you and the
subcommittee.
The bill includes in Section 5(c)(2) reference to training
exercises by the Colorado Army (Air) National Guard, a contingent of
which is based at the Eagle County Airport, near Deep Creek, and to a
memorandum of understanding between the National Guard and the U.S.
Forest Service for activities over and near Deep Creek.
Our coalition understands the need to maintain a well-equipped and
well-trained citizen military, and we support reasonable use of public
lands for military exercises. Since a wilderness designation, in
itself, does not restrict overflights of any type, including military
flights, this provision appears to be unnecessary and could be left out
of the legislation.
At the same time, a wilderness designation must recognize, and
preserve, this area as a place without the structures or the motorized
activities of any human endeavor, except in the case of utmost and
short term emergency, as already provided in the Wilderness Act and in
agency regulations on wilderness management.
Specifically, military or other airborne activities over the Deep
Creek area must include no landings inside the designated wilderness or
other motorized travel across the land itself. We believe that other
narrow, steep canyons nearby, areas also included in the memorandum of
understanding, can provide similarly challenging training
opportunities.
Several other points, each essentially a question of legislative
drafting or clarification include the bill's references to management
under the Federal Land Planning and Management Act, reference to
ability to ``enhance'' wilderness values, and reference to provision of
new rights-of-way across wilderness. In general, we will seek
clarification that none of these provisions diminishes the basic
protections found in the Wilderness Act.
Again, it a pleasure to be engaged in this effort to secure the
recognition and protection of the outstanding natural wonder that is
Deep Creek. Our enthusiasm for this effort is enhanced by the fact that
our own Congressman, Chairman of this key subcommittee, has decided to
lead this effort.
In these days of fear and necessary courage in the face of some
abominable human behavior, the solace of wilderness, even the knowledge
that it is out there, preserved, is a key part of our personal and
national well being. Places like Deep Creek are the essentials of
America the Beautiful, a land that justifiably increases our pride and
our collective will to make the world a better, safer place.
As naturalist and guide Sigurd Olsen said some fifty years ago,
``Wilderness to the people of America is a spiritual necessity, an
antidote to the high pressure of modern life, a means of regaining
serenity an equilibrium.''
Perhaps more than at any other time, that observation is relevant
and true.
Thank you again, Mr. Chairman and members of the subcommittee, for
joining in this good work on behalf of American wilderness.
______
[Attachments to Mr. Smith's statement follow:]
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Mr. McInnis. Commissioner, I want you to know that 10 years
ago or so, at the urging of some of the county commissioners
then, I took my first overflight to talk about wilderness on
Deep Creek and so on. So the commissioners of Eagle County have
been very consistent in their attention to this in now well
over a decade for attention on that, and you have certainly
carried it forward. I appreciate it.
You may proceed.
STATEMENT OF TOM C. STONE, EAGLE COUNTY COMMISSIONER, STATE OF
COLORADO
Mr. Stone. Thank you, Mr. Chairman. And thank you, members
of the Committee. In the interests of time, and recognizing
that brevity is appreciated, I am not going to share with you
my--or speak my written testimony. I have submitted it. I would
like to sum it up, though, and I really would like to focus on
one very, very, very key issue, and that is the Army National
Guard.
I spoke with the professional, Colonel Joel Best, right
before I came out here and asking Colonel Best what his
concerns were. And he reiterated to me, as I am sure that he
has shared with you, Mr. Chairman, the necessity of having--to
be able to continue operations as they have operated in the
past in Deep Creek Canyon.
The high-altitude training site is a world-renowned site. I
have seen pilots in there from Norway, Sweden, from all sorts
of countries throughout the world, plus, of course, the United
States, coming there for high-altitude training that they do
not get anywhere else in the world. This is a truly unique
facility.
In recognition of that, within the last 6 months, Eagle
County just signed an 80-year lease for a dollar a year for a
substantial portion of the Eagle County Regional Airport with
the Army National Guard. That should give you an indication of
our commitment. Not only do they provide training, but they
provide search and rescue efforts for the entire western slope
of Colorado. And Colonel Best said to me very simply,
Commissioner Stone, if we don't have those training
opportunities that the canyon provides for us, we are just not
going to be able to provide the service that we have provided
in the past. There are other areas that they do use, but other
areas do not provide them with the training opportunities that
they have there. And Colonel Best did go on to tell me that he
was sure that some of the pilots that he has trained personally
will be in operations over in Afghanistan.
So I will end my testimony to give you some time to ask
some questions. Thank you.
Mr. McInnis. Thank you, Mr. Commissioner.
[The prepared statement of Mr. Stone follows:]
Statement of Tom C. Stone, Eagle County Commissioner, Eagle, Colorado
Thank you Mr. Chairman and members of this Committee for the
opportunity to speak in support of designation of certain lands as the
Deep Creek Wilderness Area. Almost 86% of my County is publicly owned
lands. As a Commissioner in Eagle County, I take my job as a
responsible steward of these lands very seriously. Our County is home
to world famous Vail ski area. As a result of our many recreational
opportunities and incredible mountain vistas, we are also one of the
fastest growing counties in the nation. As a board of County
Commissioners, we constantly strive to strike a balance between
responsible use of our lands and protection where warranted. Following
the concept of multiple use of the Federal lands in Eagle County, we
believe that the wise use of some property should be geared more
towards active recreation. Other lands warrant a more passive use and
the ultimate designation of Wilderness. Properly defined and regulated,
Deep Creek affords a unique opportunity for almost all stakeholders to
agree on this most protective establishment of Wilderness.
The Eagle County Board of Commissioners and the Garfield County
Board of Commissioners both passed a resolutions unanimously that read
in part, ``Deep Creek has met the definition of wilderness by its
scenic and ruggedly remote limestone canyon, which is up to 3,000 feet
deep. It contains more than 40 caves, including Colorado's largest
known cave. Deep Creek provides a pristine stream, lined with high-
quality blue spruce, Douglas fir, and Red-Osier dogwood habitat, and is
home for deer, elk, mountain lion, bald eagle, peregrine falcon,
northern goshawk, Townsend's big-eared bat, round-tail chub, numerous
songbirds and raptors''. The Resolution goes on to say, ``the proposed
wilderness designation which is being supported herein includes the
area contained rim to rim of Deep Creek totaling approximately 8,450
acres of which 2000 acres are in Eagle County and 6,450 acres are in
Garfield County''. The area that my board supports is one that is truly
rugged and has very limited signs of the influence of man.
One of the most notable features of this proposed designation is
something other than the property itself. The feature that I refer to
is the process that Congressman McInnis used to craft this Bill.
Congressman McInnis solicited a broad range of local input from County
commissioners, private property owners, the Colorado River Water
Conservation District, environmental groups and other stakeholders
before submitting this Bill. Too many times we have seen just the
opposite where someone will offer a Bill first and ask questions later.
Congressman McInnis should be commended on his commitment to local
input, which has resulted in a thoughtful bill that combines the goals
of local officials with environmental initiatives. This truly
collaborative process has resulted in a bill that is ready for speedy
passage with little or no change necessary. Trusting in the Forest
Service's RARE II survey, which indicates a Roadless Area of 11,060
acres, and adjusting to protect private property and water rights, the
boundaries that Congressman McInnis has proposed are appropriate.
Permitted use by the Colorado Army National Guard, adherence to
Colorado Water Law and the requirement of no Buffer Zones are all
essential features of this Bill. Without these requirements our board
could not support this legislation. Congressman McInnis has met the
needs and all requirements necessary to satisfy us that all proper
safeguards have been met.
I urge this Committee to pass this legislation as presented. Overly
extended discussion will only serve to endanger these lands from ever
gaining the designation that they deserve. Thank you for your time and
public service to the great needs of this great nation.
______
[An attachment to Mr. Stone's statement follows:]
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Mr. McInnis. In light of that, we will go ahead and go
straight to questions from the panel.
Mr. Inslee.
Mr. Inslee. Thank you. I just want to open a question to
anyone who can answer it. As far as water rights, could you all
give us some description of what you perceive to be the
existing right to use water and how that would be affected by
this bill, and in real terms. In other words, is there an
acrefeet that could be used for irrigation now, but would not
under this bill? Is there a flow regimen required by some, you
know, legal challenge or otherwise? Just give us a real-world
feeling of what would change under this bill and what we should
be thinking about.
Mr. Treese. Thank you, Mr. Inslee. Chris Treese.
There are both existing water rights upstream and adjacent
to this wilderness area that rely on Deep Creek for their water
supply. There are also planned water facilities that have what
is called in Colorado a conditional water right, which
essentially serves as a placeholder in our priority system.
There is also a third element of water rights to understand
as a baseline in answer to your question; that is, an in-stream
flow right held by the State, held by the Water Conservation
Board, as mentioned by Ms. Kimbell, that protects the in-stream
or free-flowing values of Deep Creek.
The concern, to answer your question, about wilderness
designation if it were not to have explicit recognition of the
existing water rights, both perfected and conditional, is that
you end up with a--at least, at the very least, a very
difficult political situation to try and permit those future
water facilities upstream of a wilderness area. By their nature
they have some depletive effect upon the stream itself, and
some will argue that any depletive impact will irreparably harm
the wilderness values for which the wilderness was recognized,
again, unless the wilderness language, the enabling
legislation, does not explicitly recognize that, and the
Congress basically have said these can be accommodated and
still have those wilderness values.
Mr. Inslee. Does some entity today have an in-stream flow
water right? If so, who is that?
Mr. Treese. Yes, sir. It is the State of Colorado. The
State of Colorado within the State is the only entity that is
legally allowed to hold a water right for free-flowing water
purposes. They do have a water right. It is, I believe, for 14
cubic feet per second in the summertime and 8 cubic feet per
second in the wintertime.
I would add that I have not heard anybody suggest in any of
the discussions that I have had that that is not adequate for
the wilderness or--for the Deep Creek stream system, the
environmental system.
Mr. Inslee. Well, even without a designation in the bill,
those water rights would be protected, would they not, even
without a specific statement that those water rights are not
abrogated or expanded or contracted?
I am trying to figure out, why do we have to address that
issue? Aren't those water rights, to extent they exist, vested,
legally recognized?
Mr. Treese. I think if you are only referring to the
existing water rights that are--that have already been
developed, both the in-stream flow right and the existing water
rights for which facilities are already developed, you are
probably correct. However, the need to change the operation of
the facility forever into the future cannot be determined at a
given point in time. The principal concern is for the
conditional water rights, that is, for the water rights for
facilities that are planned to be developed, but not yet
developed, and a protection for those water rights and a
recognition that these water rights, once developed, will have
a depletive impact on Deep Creek.
Mr. Udall of Colorado. Will the gentleman yield?
Mr. Inslee. Sure.
Mr. Udall of Colorado. In Ms. Kimbell's testimony, Mr.
Treese, she said that the conditional water rights upstream
from the proposed wilderness far exceed the estimated average
flow, the estimated high flows, and even the observed peak flow
on this stream. Do you agree with her estimates?
Mr. Treese. I am adding up quickly in my head. I am not
sure that I do. I believe that they may--the Forest Service
testimony and statement may include conditional water rights by
a company called Rocky Mountain Power that were only relatively
recently abandoned and are no longer on the table so--the State
table of water rights. That removed between 110 and 190 cubic
feet per second from that cumulative total.
Mr. Udall of Colorado. So is it or isn't it accurate to say
that development of these conditional water rights would mean
or could mean that part of Deep Creek in the wilderness area
could be completely dewatered, at least part of the time?
Mr. Treese. I don't know that to be true or false. I am
sorry. I would be happy to follow up with you and look at both
the stream data. There is not a gauging station, to my
knowledge, on Deep Creek. So we would have to do some synthetic
data trying to figure out exactly what the--using the existing
stream gauges where they exist to come up with a reasonable
estimate of how much water Deep Creek contributes to the
Colorado River System, and then looking at these conditional
water rights.
Mr. Udall of Colorado. I would appreciate if you could
provide that. I am not looking for an outcome that is
predetermined. I think it would be very good data. I thank the
gentleman for yielding, and I used all of his time.
Mr. Inslee. Can I make just one comment, and go over my red
light, if I could? It strikes me, and I can be educated on
this, but it strikes me that we shouldn't and will not abrogate
existing water rights by passage of wilderness designations. On
the other hand, I don't think we want to get into situations
that would tie future public decisionmaking of upstream flows
to the extent that they can be considered by whatever public
entities have to make it.
For instance, let's assume there is 10,000 acrefeet of
water rights that are not owned by anyone in upstream flows,
they are open for future development, open for future
consideration. And some public entity, and I don't know
Colorado water law a lot, but could be involved in the
decisionmaking of whether development takes place upstream or
not.
I guess I don't want to tie the hands of public officials
to say you can't consider it, that there is a wilderness area
downstream, in a decision of whether or not to grant rights
that may or may not exist. And I just think that is something
we should think about in how we structure this language.
Thank you, Mr. Chair.
Mr. Smith. Mr. Chairman, may I offer a couple of remarks
being that Congressman Inslee offered it as a general question?
Just two quick supplements to what Chris ably outlined on the
condition of water up there.
On the existing water rights, both conditional and
perfected, is that those are of senior nature and ought to be
maintained. And our boundaries and our proposal leave those out
and available for continued operation. We just want to be sure
that the Federal managers of the new wilderness also have a
water right at the table in Colorado water rights negotiations
to compare and negotiate with the other folks who hold the
water rights.
The second quick point I would make is that the Colorado
Water Conservation Board, the designated holder typically of
in-stream flow rights in Colorado, has as a definition for its
in-stream flow rights one that is completely different than the
purposes of wilderness. It is a different set of principles
that basically provide sufficient flow for fish life, fish to
live. It is more complicated than that, obviously, but it does
not take in the complex range of water purposes and water
benefits in a wilderness area. And so we believe that water
protection for the wilderness needs to go well beyond what the
State already has in place. Thanks very much.
Mr. McInnis. Let me point out a couple of things. First of
all, remember that this legislation is unique.
Let me step back. The Colorado water law is unique and very
complicated. This is unique, this particular bill, in that we
are talking downstream and not headwaters; and of course, the
fear is, any time you put a wilderness downstream, the Federal
Government, which they did through--Judge Kane, in about 1986,
I think it was about 1986, said that the Government, even
though it was never mentioned, had water rights which impacted
everybody that was utilizing water, especially anybody that was
junior, or in a case like this, anybody that was upstream.
You could very well into the future have a Federal judge
just like Judge Kane say, Hey, the Federal Government has water
rights that are downstream; and therefore not just the quantity
but the quality of the water, the temperature, et cetera, et
cetera, and they could have a huge impact on every water right
above it.
That is the big fear in Colorado, and I have made it very
clear as a condition of any type of wilderness, at least that I
have any leverage over, has to meet two elements. One, it has
got to have local support. I think that is reflected here; and
two, it has got to have a water right sign-off, because when
you are dealing with the wilderness areas that are not the
headwaters, you are dealing with a very complicated subject and
that is why the river district--and the river districts have
had a number of meetings on this, lots of debate on this, and
their sign-off was absolutely critical.
So if we proceed to try and negotiate something further and
we lose the sign-off of the Colorado River district, we lose
the bill. It is that simple, and that is how critical the water
issue is.
Mr. Smith. Mr. Chairman, I would be pleased to note that we
have been visiting with members of the river district board and
with their staff in an attempt to come up with a composite of
wilderness water rights provisions that will be acceptable to
them and still protect the characteristics of wilderness for
which this designation is intended; and we are very pleased to
continue working with the district in those kinds of
negotiations so, as you say, they sign off on something that
works for both purposes.
Mr. McInnis. That is right, Mr. Smith. That sign-off is
critical for the life of this legislation, so to speak.
Do we have any further questions by any members of the
panel?
Mr. Udall of Colorado. Mr. Chairman, thank you, and I would
add my support to the remarks you made about the challenge we
face when we have downstream wilderness areas. And there is a
whole series of court cases that have tried to deal with this
in a way that treats everybody fairly, and we continue to have
to respond to the new situations that arise.
Chris, just to pursue this a little further, I think it is
important to have all of this on the record. Isn't it accurate
that the United States already has a water right for national
forest purposes, so what we are talking about is whether there
should be some new right in Deep Creek?
Mr. Treese. I am not aware of a Forest Service water right
in Deep Creek.
Mr. Udall of Colorado. I think there are for the national
forests in general. Is that your understanding?
Mr. Treese. That has been litigated on a forest-by-forest
basis is my understanding, and there have--they have found a
limited appropriative reserve right for the forest, not a
reserve right for an in-stream flow or a free flowing flow of
the river, a water right.
Mr. Udall of Colorado. So, in effect, we are still
discussing here today whether there ought to be a new right
although there is already this existing position that the
Forest Service holds?
Mr. Treese. I believe that is what we are discussing.
Mr. Udall of Colorado. What is the old saying? Whiskey is
for drinking and water is for fighting over.
I think in the great State of Washington they don't have
that problem. So we should invite my colleague, Mr. Inslee, to
Colorado and have him spend some additional time. Although he
did have a great backpacking trip in Congressman McInnis's
district last summer up in the Maroon Bells Wilderness, so he
has firsthand experience.
I am looking at my list of questions here. Back to Ms.
Kimbell, she suggested the bill should be amended so the Forest
Service, working with the Water Conservation Board, has the
opportunity to protect the critically important water and flow-
dependent resource values of the proposed Deep Creek
Wilderness. What would be your reaction to that suggestion, Mr.
Treese?
Mr. Treese. Thank you. I was pleased to hear the Forest
Service make that comment. I think that it is critical that
whatever solution is crafted recognizes State water law and the
ability of the State to administer whatever water solution is
crafted. It is the State that is responsible for the
administration of water, and if it is not a water right and
recognized by the State, it is not an administratable water
right.
Mr. Udall of Colorado. Mr. Smith, I take it you might have
a suggestion of another approach.
Mr. Smith. We would be--we have several other approaches, I
think, that would work in the context of this one suggestion
that the Forest Service has made.
We remain concerned that the Water Conservation Board has
in place procedures and definitions and standards for the
amount of an in-stream flow right that are based on purposes
different from the purposes of the Wilderness Act. The Board is
not currently capable, under its own guidelines, to hold a
wilderness in-stream flow right. If that board were to develop
such standards that would protect the wider range of aquatic
and riparian needs of such an in-stream flow right, that might
be a possibility, but there is work to be done in order to make
the approach work.
Mr. Udall of Colorado. I hope I didn't wade into that
subject so far I got over my head.
But Commissioner Martin, I want to welcome you and
Commissioner Stone. Congressman McInnis and I have had some
success in the James Creek area, and we worked over a number of
months--and in my case, years--trying to reach consensus. I
know in Garfield County you had initially opposed any new
wilderness, and I note now, at least in this case, you have
changed your minds or have seen an opportunity.
Would you just talk briefly about what changed your views
on this and whether that might hold--my goal is some
understanding as we look at all of the proposed wilderness in
the State of Colorado, because we have some outstanding issues
we have got to resolve in that regard.
Mr. Martin. All right. I think you are going on the
assumption that was put out by the press, saying that we were
opposed, et cetera. In fact, the press failed to report the
other half of the story, and that was that we opposed grouping
all wilderness together in one bill, and we said we would not
support that type of a bill.
We did say we would support each individual area to be
considered and to do that, we have done, taking it through the
public process, through our own public hearings, each community
being involved, asking for support, and then the users as well
as the managers. That is the approach we took.
We do not oppose wilderness. In fact, we are very strong. I
think Garfield County has just about the most wilderness in the
area.
Mr. Udall of Colorado. When you say "most wilderness,"
potential wilderness? You already have designated wilderness?
Mr. Martin. Flat Tops Wilderness Area. We are also looking
at an expansion of the Flat Tops Area, as well as Hack Lake and
several other areas, the large BLM Demaree Canyon, 64,000
acres, which is on the west end of Garfield County.
Mr. Udall of Colorado. I know my time has expired, but so
the press, you believe, misreported your position--and that has
never happened to Congressman McInnis or myself--so at times it
is difficult to make sure that the story is complete. So if
that is the case, I look forward to working with you in this
Committee and with your able Representative, Mr. McInnis, in
the future.
Thank you for taking the time to come to Washington.
Mr. Martin. Thank you. Also thank you for putting me in the
same group of being represented in the newspaper.
Mr. McInnis. Congressman Udall, I point out that both
Commissioner Stone and Commissioner Martin have been very frank
about the fact that this has got to go through a local vetting
process and that they do oppose, as I think most of us in these
types of positions on the West Slope do oppose, a package that
you can't customize, just throwing it all into one bill; and
that is where this opposition was reported by the media. In
fact, both of these individuals have been commendable in the
process that they have vetted it through.
In fact, the way they have taken it through their
constituent process is one that I think should be used as an
example in other counties throughout the State, and I just want
to point that out to reemphasize their dedication to the public
lands, because both of them represent counties that have a
tremendous amount of public lands, and every community in both
of their districts is completely surrounded by public lands.
So whether it is payment in--PILT funds, or public access
or multiple use, these two are really very approachable, number
one, and very educated on the issue.
Mr. Udall of Colorado. Will the gentleman yield?
Mr. McInnis. Sure.
Mr. Udall of Colorado. I appreciate those sentiments and I
know we have debate before us about which lands deserve
wilderness protection and which lands ought to revert to uses
of the past; and I hope we can continue to work together,
because we have those other challenges.
You mentioned PILT and timber receipts in some of the
counties in Colorado. We have health care issues that face your
district that we would like to spend time addressing, as well
as getting after the, I think, opportunity, but the danger that
faces us with the condition of our forests and forest health
challenge we face. We want to try to reduce the potential for
these hazardous wildfires that have become more prevalent in
the West.
So I look forward to working with you and Chairman McInnis
on all of these issues.
Mr. McInnis. I think it is important to keep in mind that
legislation, for example, as Deep Creek, this does not come
about as a result of the 1988 proposal. I flew over 10 years
ago when they were trying to get me interested in putting the
wilderness--the Eagle County commissioners and Garfield have
had discussions on this for many years. So a lot of these
pieces of property, it is going to take that type of vetting
process; and if they try and shortcut that vetting process, I
think it is incumbent upon the commissioners to say, no, not
until our constituents have had an opportunity to really vet it
out, as I said earlier.
So no further questions. I want to thank the panel.
Everyone on the panel came a long distance, and especially in
these circumstances, where travel is pretty taxing. I
appreciate the jobs you are doing back there. Thank you for
coming.
Does the panel have any further business? Seeing no further
business, the Committee is adjourned.
[Whereupon, at 6:11 p.m., the Subcommittee was adjourned.]
[A letter submitted for the record by Mr. McInnis follows:]
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