[Congressional Record Volume 143, Number 80 (Tuesday, June 10, 1997)]
[House]
[Pages H3653-H3656]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  AMERICAN HERITAGE RIVERS INITIATIVE

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 7, 1997, the gentlewoman from Idaho [Mrs. Chenoweth] is 
recognized for 60 minutes as the designee of the majority leader.
  Mrs. CHENOWETH. Mr. Speaker, I am here tonight to talk about the 
White House and its Council on Environmental Quality's latest flight 
from democracy, embodied in the so-called American heritage rivers 
initiative.
  Mr. Speaker, there are many, many things that are wrong with the 
American heritage rivers initiative. But tonight I would like to focus 
on just three of those things. Its procedure, States' rights and water 
rights, and the separation of powers.
  The initiative purports to establish a mechanism by which President 
Clinton will designate as American heritage rivers 10 rivers per year. 
It establishes undefined, fictional governing entities known as water 
communities. These governing water communities will then determine the 
scope and the size of the designation area, which can include the 
entire watershed. There are no safeguards for a D designation and no 
safeguards for private property owners within the area who object to 
this inclusion in the designation.
  I will discuss this in detail later, but first, just before Memorial 
Day district work period, the Council on Environmental Quality, an 
unauthorized agency existing on misappropriated funds, I might add, 
published the American heritage rivers initiative in the Federal 
Register. It is in the May 19, 1997 volume, page 27253, and I urge my 
colleagues to read it.
  Although CEQ has in the past been the primary overseer of the 
National Environmental Policy Act process, in this instance CEQ appears 
to have totally abandoned NEPA's threshold requirements. As the 
administration knows very well, an environmental impact statement, an 
EIS, is required any time a major Federal action significantly 
affecting the quality of the human environment is contemplated. When 
CEQ proposes to control our Nation's waters, this, Mr. Speaker, is a 
significant action. Yet, to my knowledge, CEQ has not even bothered to 
address NEPA's threshold question.
  Where is the environmental assessment? How about an EIS, or, at the 
very least, the very barest recognition under NEPA of finding of no 
significant impact?

                              {time}  2215

  But nothing from the administration. Mr. Speaker, what CEQ has given 
us is a mere 3-week public comment period, the May 19 date of 
publication to the June 9 closing of the public comment, with no NEPA 
documentation.
  The Administrative Procedures Act, the APA, applicable to any agency 
action, requires a minimum of 30 days' public comment period. In 
general, unless there is an emergency, NEPA's environmental impact 
statement requires a 90-day public comment period. Yet, here CEQ 
blatantly violates its own rules and the rules and requirements of the 
Administrative Procedures Act and offers a mere 3-week comment period.
  I am not aware of an emergency. Why the rush? This violates the 
Administrative Procedures Act and totally ignores the National 
Environmental Policy Act. Fortunately, Mr. Speaker, the gentleman from 
Alaska [Mr. Don Young] of the Committee on Resources and the gentleman 
from Oregon [Mr. Bob Smith] of the Committee on Agriculture, along with 
myself and other resources subcommittee chairmen, sent a letter to Katy 
McGinty strongly advising CEQ to extend the comment period to at least 
another 90 days. She would have been wise to follow our advice. I 
entered that letter into the Record here on Wednesday, June 4.
  Additionally, I am aware of no fewer than 35 other Members making 
similar extension requests of CEQ. It would certainly be in the best 
interests of everyone involved in CEQ if that agency would extend the 
public comment period, and I urge them to do so.
  Mr. Speaker, CEQ's comment period closed today. Today I have yet to 
hear if its counsel has decided to extend its comment period to even 
the legally required minimum. I read a news account of how baffled CEQ 
is by the concerns we have raised. Perhaps if the comment period were 
extended, enlightenment might follow.
  The chairman of the Committee on Resources, the gentleman from Alaska 
[Mr. Don Young] has also called an oversight hearing for June 26, 1997 
in our committee. I have at least a glimmer of hope that we will then 
have some of our questions answered, but I will not hold my breath.

[[Page H3654]]

  The last procedural point I would like to point out, Mr. Speaker, is 
that CEQ has responded to some of these concerns by claiming that the 
American Heritage Rivers Initiative is not a program, but some other 
hybrid that does not require a rule. Indeed, CEQ officials have stated 
that this initiative did not even require a publication in the Federal 
Register, and to this I say, wrong, absolutely wrong.
  Procedurally, I would like to point out that the law, the United 
States Code that even CEQ is bound by, defines a rule as the whole or 
part of an agency statement of general or particular applicability and 
future effect designed to implement, interpret, or prescribe law or 
policy or describing the organization, procedure, or practice 
requirements of an agency.
  Mr. Speaker, despite CEQ's claims, this so-called initiative is 
indeed an agency statement of general applicability and future effect 
designed to implement and describe the organization procedure and 
practice of an agency. As they say, Mr. Speaker, if it walks like a 
duck, if it talks like a duck, and swims like a duck, then it must be a 
duck.
  Mr. Speaker, the American Heritage Rivers Initiative is indeed a 
duck. It is, without a doubt, a rule within the meaning of 5 U.S.C. 
section 551(4), and is therefore an agency action subject to the 
procedural requirements under the Administrative Procedures Act; also, 
under the National Environmental Protection Act. Again, where is the 
NEPA documentation? Where is the adequate public comment?
  Last, the newly enacted congressional review of Agency Rulemaking 
Act, 5 U.S.C. section 801, et al., requires that the Federal agency 
promulgating such a rule shall submit to each House of the Congress and 
to the Comptroller General a report.
  To my knowledge, this has not been done. Why? Because CEQ claims that 
it is not a rule. Again, Mr. Speaker, if it walks like a duck. 
Procedurally, Mr. Speaker, this proposed American Heritage Rivers 
Initiative is a disaster, procedurally.
  The next issue I would like to discuss is the issue of States' rights 
and water rights. This necessarily implicates private property.
  Mr. Speaker, as I said last Wednesday, one of the reasons for 
America's strength and meteoric rise is because of the wise use of her 
rivers and waterways for irrigation, travel, recreation, power, flood 
control, and all other uses. Through the wise use and allocation of 
water, America has literally turned our deserts into gardens and a once 
inhospitable land into wonderful places to live and to recreate. In my 
State of Idaho, water is the absolute lifeblood of this State. We have 
more than 15,000 farmers and more than 3 million irrigated acres. That 
is larger than the sum total of many of the States. Nearly 40,000 
individuals are employed in one way or another by agriculture.
  Mr. Speaker, many people do not know this, but Idaho has a seaport. 
The Port of Lewiston and its two adjacent ports via the Snake and 
Columbia Rivers export 40 percent of America's grain exports to Asia. 
This is water barge transportation. Yes, Mr. Speaker, water is very 
important to the State of Idaho and to the Nation.
  Mr. Speaker, Idaho's waters or waterways and reclamation projects 
help make Idaho the gem State. Water is in fact so important that the 
Idaho Constitution, as approved by Congress when Idaho entered the 
Union, expressly states that, ``The use of all waters is subject to the 
regulations and control of the State.''
  Additionally, Idaho code, section 42-101, states:

       All the waters of the State, when flowing in their natural 
     channels, including the waters of all natural springs and 
     lakes within the boundaries of the State, are declared to be 
     the property of the State, whose duty it shall be to 
     supervise their appropriation and allotment to those 
     diverting the same therefrom for any beneficial purpose.

  Clearly, water within the boundaries of the State of Idaho are, 
unless privately owned, property of the State of Idaho. How, then, can 
the Clinton administration designate something that is not the Federal 
Government's to designate? This is an assault on private property 
rights, States' rights, America's values, and certainly our Western 
values.
  Quite simply, this initiative will simply replace the long-
established and constitutionally protected policies that govern the use 
of our waterways which are critical to our economic survival, not only 
in the West but to the entire Nation. That is why, for the past 
century, the Supreme Court has held in case after case that in the West 
it is the States who control the use of water.
  As I did Wednesday, let me quote from one of the seminal U.S. Supreme 
Court cases on this issue, the 1978 case entitled ``California v. 
United States,'' written by Justice Rehnquist.
  The Justice writes:

       The history of the relationship between the Federal 
     Government and the States in the reclamation of the arid 
     lands of the Western States is both long and involved, But 
     through it runs the consistent thread of purposeful and 
     continued deference to State water law by the Congress. 
     Indeed, to take from the legislatures of the various 
     States and territories the control of water at the present 
     time would be something less than suicidal. If the 
     appropriation and use were not under the provisions of 
     State law, the utmost confusion would prevail.

  Mr. Speaker, this United American Heritage Rivers Initiative would 
create utmost confusion. How can the Clinton administration assert 
control over something that it clearly does not own, and so important 
to our State?
  To make matters worse, this initiative is not just limited to the 
rivers. It redefines communities, watersheds, and jurisdictional 
boundaries. It creates a governing entity called the river community, 
but what is a river community, Mr. Speaker? Who belongs to a river 
community? Do not believe for a minute that a river community will be 
made up only of people who make their living from and are dependent on 
our rivers.
  Mr. Speaker, this fictional entity, the river community, will then 
define the area covered by the American Heritage River designation. 
They decide the length of the area, whether it be an entire watershed, 
the length of an entire river, or a short stretch of a river, and may 
cross jurisdictional boundaries, including State boundaries.
  Apparently when it comes to rivers, the Clinton administration 
believes that it takes more than a village, it takes a river community. 
When someone sitting in New York City can appeal land management 
decisions in the West, such as a timber sale and grazing allotment 
plans, with a mere postcard, who is it that the Clinton administration 
will decide is a member of the river community? What interests will the 
members of the river community have? Also, how will the designation be 
made?
  Watershed, as we all know very well, Mr. Speaker, can literally be 
from mountaintop to mountaintop, and include vast areas. What about 
private property inside these watershed areas? If a private property 
designation is being contemplated, will the private owner be able to 
protect and sustain his ownership right? No, he will not. I have 
learned, Mr. Speaker, through my inquiries that this designation could 
happen even over the objections of a homeowner, a shopowner, a farmer, 
a rancher.
  What about State and local property? Mr. Speaker, an American 
Heritage River designation will further dilute local control and 
decisionmaking. It will do nothing but add another layer of bureaucracy 
that must be dealt with, another hurdle to overcome when an entity, the 
private landowner or the State, desires to utilize the land.
  CEQ has argued that the designation carries no legal meaning. I 
disagree. The very designation creates yet another obstacle, legal or 
not, and yet another tool for the use by environmental extremists to 
stop the wise use of our lands. Mr. Speaker, the Supreme Court 
recognized the importance of water to the arid western United States. 
Why cannot the Clinton administration respect this supreme law of the 
land?
  As the Supreme Court has stated in the case entitled ``California v. 
United States'' in 1978:

       The legislative history of the Reclamation Act makes it 
     abundantly clear that Congress intended to defer to the 
     substance as well as the form of State water law * * * to do 
     otherwise would trivialize the broad language and purpose of 
     the Reclamation Act.

  In other words, Mr. Speaker, the utmost confusion will prevail.

[[Page H3655]]

  The final issue I would like to talk about tonight, Mr. Speaker, is 
the wisdom of our Founding Fathers as embodied by the doctrine of the 
separation of powers. As I learned it, the legislative branch creates 
the laws, the executive branch is to implement and enforce the laws, 
and the judiciary interprets the laws.
  Yet the American Heritage Rivers Initiative was created and tendered 
solely by the White House and executed without congressional approval. 
When it comes to our resources issues, the Clinton administration has 
once again usurped the Congress' lawmaking authority. Nowhere in law 
can one find the American Heritage Rivers Initiative, nor has Congress 
conferred to CEQ the power to govern and control our rivers and 
watersheds.
  This raises some very, very serious issues, going beyond who and how 
this program is authorized. But how is it paid for?

                              {time}  2230

  Since the American Heritage Rivers initiative has never been 
authorized by Congress, exactly which land and water program's funds 
were siphoned to prepare this proposal? How does the administration 
intend to continue funding this unauthorized project, if it is 
established?
  CEQ has stated that this program is merely a coordination of existing 
and ongoing Federal programs. Yet the American Heritage Rivers 
initiative assigns a so-called river navigator, a Federal official, to 
the river community, the governing body, to help guide it toward 
Presidential designation. But I challenge the CEQ to show me where it 
is that the Congress has authorized a river navigator. And it would be 
foolish to believe that these river navigators work for free. Who 
authorized this position? Who appropriated the funds?
  My concern, Mr. Speaker, is that funds needed forward on the ground 
management activities such as range-cons, engineers, biologists, and 
foresters are being misdirected from other legitimate and authorized 
programs. Similar to other so-called initiatives unauthorized by 
Congress, like the Interior Columbia River Basin Ecosystem Management 
Project, which comes to mind, it costs hundreds of millions of dollars 
to the American taxpayers and the administration is again operating 
ultra vires and is misusing taxpayer dollars.
  This program is a misappropriation of time, of resources and the 
taxpayers' money. You can be assured, Mr. Speaker, that we will be 
addressing each of these three issues at the June 26 Committee on 
Resources meeting.
  CEQ has stated that if any legitimate opposition were to surface 
against the designation, including opposition by a Member of Congress 
representing the proposed area, the proposal will not go forward. 
Pardon me, Mr. Speaker, but if this does not give me much comfort, do 
not be surprised.
  For the Record, I oppose any designation of an American Heritage 
River in the State of Idaho or any place in this Nation. But I call the 
Members' attention to President Clinton's designation of the Grand 
Staircase-Escalante National Monument in Utah. Despite CEQ's 
protestations to the opposite, not one of the members of Utah's 
congressional delegation nor the Governor were informed of this pending 
action, which set aside nearly 2 million acres in the State of Utah 
plus a very, very valuable coal mine.
  The Resources Subcommittee on National Parks and Public Lands, of 
which I am a member, held a hearing in which Senators Hatch and 
Bennett, Utah Governor Leavitt, Secretary Babbitt and CEQ chairman Katy 
McGinty testified. In the face of both Utah Senators and the Governor, 
Chairman McGinty stated she informed them of the impending monument 
designation. Both Senators and the Governor clearly and unequivocally 
stated that they were not informed. At best, the administration acted 
without consulting the leaders of the State of Utah. At worst, 
President Clinton acted over the unified objection of that State.
  Nonetheless, whether Utah's delegation knew or not is no matter, and 
I tend to believe the Senators and the Governor that they had no prior 
knowledge.
  CEQ's promises that only a community that wants these designations 
are empty to me. Its promises leave me with very, very little comfort. 
The American Heritage Rivers proposal is just one in a string of 
Clinton administration attacks on natural resource policies in America 
and most especially in the West.
  This is a nation of laws. But from the Utah Monument Ecosystem 
Management Projects to BLM's law enforcement regulations, this 
administration has demonstrated an absolute lack of regard for our 
Nation's laws and regulations, including requirements of the 
environmental laws.
  Mr. Speaker, the administration has blatantly ignored Congress' 
lawmaking authority, and the American Heritage Rivers initiative is 
just another example. Take, for instance, Secretary Babbitt's attempted 
rewrite of 43 CFR 3809 pertaining to surface mining. Secretary Babbitt 
has stated publicly that he did not need the Congress' help to rewrite 
the mining law of 1872 but that he could do it administratively.
  Mr. Speaker, we cannot allow the administration to ignore this body. 
Without a check on the executive branch, this Nation will continue down 
the road to chaos. And unless Congress asserts its constitutional 
responsibility, it is well on its way to becoming a toothless tiger, 
capable only of doling out the taxpayers' hard-earned dollars to fund 
big bureaucracies like the CEQ. Where are we with regard to the 
protection of property and States rights?
  As James Madison wrote in Federalist No. 47, the accumulation of all 
powers legislative, executive and judiciary in the same hands, whether 
of one, a few or many, and whether hereditary, self-appointed or 
elective, may justly be pronounced the very definition of tyranny.
  Mr. Speaker, in the name of separation of powers, in the vein of 
preserving Congress' lawmaking authority and for the good of our 
country, we must take a stand. We must draw a line and simply say no, 
we will not let you do that. We must say to the administration, you 
must act only within your designated authority.
  Mr. Speaker, we are a nation of laws. As such we must all follow 
them, even the White House, but most especially all of us in 
government.
  Tonight, I, along with a number of our colleagues, am introducing 
H.R. 1843. This bill will prohibit any funds from being spent by the 
administration on the American Heritage Rivers initiative. I urge the 
Members to join us on the Chenoweth-Pombo disapproval of the American 
Heritage Rivers initiative.
  In closing, Mr. Speaker, I would like to respond to some comments 
made by CEQ's Katy McGinty. She is quoted by the Associated Press as 
stating that she is bewildered and perplexed by our opposition to the 
American Heritage Rivers initiative. She states that it is 100 percent 
locally driven. It is government acting purely in partnership with 
local communities.
  To this, Mr. Speaker, I can only say she simply does not get it. When 
one sees a person in her position state that it is government acting in 
partnership with local communities, I have grave concerns. We do not 
want another Federal designation. We do not want a greater Federal 
presence, and we do not want enhanced Federal control over our waters.
  This is not what this Congress is about. The spirit of this Congress 
is the revitalization of the 10th amendment, the empowerment of local 
communities and States, and the recognition that the Federal Government 
is one of limited and enumerated powers. It is not about another 
Washington, D.C.-created designation of our resources. It is not about 
yet another sphere of influence for Federal bureaucrats. And it is 
certainly not about a Federal Government partnership when the State and 
local communities are quite capable of governing themselves.
  This Congress is about less government, self-determination and 
freedom. Freedom is still the issue. It is about States rights and 
property rights and the right of the people to be free of Federal 
entanglements. And the American Heritage Rivers initiative does not fit 
this bill.

  Mr. Speaker, this issue is really about control, control over our 
rivers and watersheds. If the Federal Government wants control of the 
States' waters, then what is next?
  If anyone thinks that this CEQ so-called initiative will be anything 
but a

[[Page H3656]]

tool of the environmental extremists, they had better think again. Just 
today I read that an organization dedicated to tearing out the dams and 
transportation waterways along the Snake and Columbia Rivers have 
already petitioned the White House to designate the Columbia River as 
an American Heritage River, which would end the water-based barge 
transportation, affecting hundreds of thousands of jobs, communities 
and families in the Northwest. No, this is an issue of control of the 
wealth and control of our people.
  What is next, Mr. Speaker? Part 2, No. 2, calls for aerial and 
satellite surveillance of the rivers. Well, I ask myself, will I have 
to wear a number on my hat, on the top of my head, so that the Federal 
bureaucrats in Washington, DC, using aerial photographs, can monitor 
when I am out skipping rocks on the river with my grandchildren? What 
is next?
  Yes, Mr. Speaker, this issue is indeed about control of our 
resources, our wealth and our people. It is sad.
  As I discussed earlier, water is the lifeblood of America, of the 
West and of my State, Idaho. But it is not just control over water that 
is threatened by this un-American ``make our backyard every 
bureaucrat's business'' Heritage Rivers initiative.
  Nothing less than private property rights and freedom from 
unnecessary and harmful Federal intrusion is at stake. Farmers, 
ranchers, fishermen, homeowners and others who live along rivers and 
deeply love their rivers may find themselves with diminished rights and 
reduced control over their property and their activities on the river.
  Mr. Speaker, these people, the ones who know the river and depend on 
its health and preservation, should not lose their rights because 
Federal bureaucrats or Eastern environmentalists want to initiate a 
warm and fuzzy, politically correct Federal program or another Clinton 
photo-op.
  State sovereignty, individual freedom, protection of property rights 
are the ideals that have distinguished this Nation, this great Nation. 
We do ourselves and all American citizens a disservice if we allow 
power to be usurped in this fashion.
  I urge my colleagues to stand up against this ill-conceived and 
misdirected American Heritage Rivers initiative and to cosponsor the 
Chenoweth-Pombo bill.
  Mr. Speaker, the imposition of the Clinton-Gore extreme 
environmentalist policies has taken a tragic toll on the West. We are 
losing our culture, we are losing our heritage, and we are losing the 
very way of life that we love so much. My good friend Perry Pendley 
sums up this feeling about the West in his book, ``War on the West,'' 
when he writes, and I quote:
  ``The environmental extremists' vision of the West is of a land 
nearly devoid of people and economic activity, a land devoted almost 
entirely to the preservation of scenery and wildlife habitat. In their 
vision, everything becomes a vast park through which they might drive, 
drinking Perrier and munching on organic chips, staying occasionally in 
the bed-and-breakfast operations into which the homes of westerners 
have been turned, with those westerners who are able to remain fluffing 
the duvets and pouring cappuccino. They are well on their way to 
achieving their objective.''
  Mr. Speaker, I think Perry Pendley hit the nail on the head. Many 
people in the United States east of the Mississippi just view the West 
as one big national park, and the American Heritage Rivers initiative 
is just one more assault in a long line of programs designed to turn 
the West into a playground for the East.

                          ____________________