Arkansas and Missouri Delegations Seek Answers on Blueway Designation

WASHINGTON D.C. – In a letter sent today, members of the Arkansas and Missouri Congressional delegations asked Interior Secretary Sally Jewell to answer a series of questions concerning the Administration’s designation of the White River as a National Blueway.

The letter was signed by U.S. Senators John Boozman (AR) and Roy Blunt (MO), along with U.S. Representatives Rick Crawford (AR-01), Tim Griffin (AR-02), Steve Womack (AR-03), Tom Cotton (AR-04), Vicky Hartzler (MO-04), Billy Long (MO-07), and Jason Smith (MO-08).

“Our intention is to understand the Department’s plans and activities associated with the [National Blueway System] NBS, and to find out whether there is an opt-out mechanism our states can use should they desire to exit the Blueways program,” the letter states.

Many local elected leaders in affected counties have expressed their opposition to the White River designation, due to concerns that it could lead to increased regulatory activity and threats to private property rights.  Others have emphasized that conservation should be locally led, not driven by “Secretarial Orders” out of Washington.  The White River designation likely increases regulatory attention throughout the watershed, using existing authorities.

The letter asks the Secretary to provide a detailed explanation regarding:  (1) whether states can opt-out-out of the Blueways program, (2) how much the program costs and how the Department is paying for it, (3) the legal authority that the Administration is using to justify the unilateral creation of this program, (4) the alleged benefits of the program, and (5) the insufficient, closed-door review process that was used to justify the White River designation.

Finally, the letter recognizes that Secretary Jewell was recently confirmed as Interior Secretary, so the letter directly provides the Secretary an opportunity to review Department of Interior activities and comments on the Blueways program that occurred prior to her confirmation.

Full text of the letter:

June 26, 2013

The Honorable Sally Jewell
Secretary, U.S. Department of the Interior
1849 C Street, NW
Washington, DC 20240-0001

Dear Secretary Jewell:

We are writing to obtain additional information regarding the National Blueways System (NBS) and, in particular, the Department’s decision to designate the White River in Arkansas and Missouri as a National Blueway on January 9, 2013.

After reviewing the NBS program and the White River designation process, we share many serious concerns regarding the NBS generally and the White River designation specifically.  Secretarial Order 3321 (creating the NBS) was unilaterally enacted, without clear legal authority, and it enables the executive branch to singlehandedly designate Blueways.  The White River was designated without public comment, without adequate notice, without transparency from the federal government, and without clear evidence of broad public support. This is no way to start a program that is, according to the Department, intended to promote “collaboration, communication, and cooperation.”  In addition, despite assurances that the NBS is neither “intended to authorize or affect the use of private property” nor “intended to be the basis for the exercise of any new regulatory power,” the practical consequence (intended or not) of this designation is that increased regulatory attention will likely be focused on the White River watershed using existing authorities.  Also, the focus on “land and water management practices” and a “headwaters to mouth approach to river management,” makes clear that impacts could extend to citizens and property owners throughout the watershed, not just along the River itself.

Due to these issues and a variety of other ambiguities associated with the NBS, we are writing to request additional information.  Our intention is to understand the Department’s plans and activities associated with the NBS, and to find out whether there is an opt-out mechanism our states can use should they desire to exit the Blueways program.

Please provide responses to the following questions and requests for information:

1)      What is the process through which a State, non-federal entity, or individual may request that a Blueway designation be revoked?

2)      If a State Government were to request that the Department revoke a Blueway designation, would the Department grant this request?  Please provide a clear and thorough response.

3)      Responding to a question regarding whether there would be “a cost to taxpayers,” the Department stated in a January 4, 2013 e-mail to Congressional stakeholders that: “No.  Instead, through improved communication and cooperation among federal agencies managing natural resources in the watershed, existing federal resources should be deployed more effectively and efficiently.”  However, the attached Department responses state that funds supporting NBS initiatives are derived from “participating DOI bureau and office appropriated funds” and funding for potential watershed would come from “existing base funds.”

Please provide the department, programs, and accounts any funds will be withdrawn from for the following requests:

a.       Which existing funds would be designated for the NBS initiatives on the White River;

b.      Which DOI bureau or office the funds would originate from; and

c.       What is the total amount of funding that will be diverted from other programs into the NBS initiatives on the White River?

4)      We were surprised to see that a group of 79 non-profit organizations (most of them small, localized watershed groups or associations) have written to the Senate Appropriations Committee urging the appropriation of “$3.3 million in the U.S. Fish & Wildlife budget for the National Blueways System.”[1]  Despite the fact that the White River is one of only two currently-designated National Blueways, it appears that none of the organizations signing this support letter are directly and primarily associated with the White River.

a.       Did the Department provide information related to the need for NBS funding or FY2014 appropriations for the NBS to any representative of any of the 79 organizations that signed the letter referenced above?  If so, please provide a copy of any related documents or records, and a description of information provided.

b.      Please provide a copy of any NBS-related correspondence, e-mails, or related documents that have been provided to any of these groups during either FY2012 or FY2013.

c.       Would $3.3 million fulfill all identified NBS objectives for FY14, or would you continue to draw funds from other programs?

d.      If you believe that appropriated funding is needed to carry out the NBS in FY2014, would you support a rider on FY2014 appropriations legislation stipulating that funding to carry out the NBS will be taken from the Secretary’s budget.

e.       Please provide a detailed list of all activities the Department would fund with this appropriation, were the full $3.3 million to be provided.

f.       Please provide an FTE (full-time equivalent) estimate for the anticipated workload associated with the NBS in FY2014.

5)      Please provide a detailed list of all Department costs associated with the NBS to date.  This listshould include, for example, expenses such as the travel of Department personnel to Arkansas, staff resources dedicated to the development of MOUs, and any other salaries and expenses related to development and implementation of Secretarial Order 3321.

6)      To justify the Secretary’s legal authority to issue Secretarial Order No. 3321, the document states that:

This Order is issued in accordance with authority provided under the Take Pride in America Act, Public Law 101-628; the Outdoor Recreation Act, Public Law 87-714; and the Cooperative Watershed Management Program of the Omnibus Public Land Management Act of 2009, Public Law 111-11. The bureaus within Interior have a broad panoply of legal authority to carry out their respective missions that support enhancing river recreation, undertaking river restoration, and pursuing river protection initiatives to pass on healthy rivers to future generations. These authorities include the Comprehensive Environmental, Response, Compensation, and Liability Act, 42 U.S.C. 9601 et seq.; the Fish and Wildlife Act of 1956, 16 U.S.C. 742 et seq.; the Fish and Wildlife Coordination Act, 16 U.S.C. 661 et seq.; the Land and Water Conservation Fund Act of 1965, 16 U.S.C. 4601-4 et seq.; the National Wild and Scenic Rivers Act of 1968, 16 U.S.C. 1271-1287; the Federal Land Policy and Management Act, 43 U.S.C 1702 et seq.; the Reclamation Act, Public Law 57-161; the Omnibus Public Land

Management Act of 2009, Public Law 111-11; and the National Trails System Act of 1968, 16 U.S.C. 1241 et seq.

a.       Do any of these statutes explicitly authorize the unilateral creation of the National Blueways System?  If so, please specify where and how.

b.      If not, please provide the specific language, if any, from each of these statutes that you believe most clearly authorizes the creation of the NBS.

7)      In a January 4, 2013 e-mail to Congressional stakeholders, the Department wrote that “no new resources are available” as a result of a Blueway designation, yet the Department claims that “designation confers numerous short and long-terms [sic] benefits on a National Blueway watershed.” [2]  Please provide a description of these benefits.

8)      In a January 4, 2013 e-mail to Congressional stakeholders, the Department stated that the White River “nomination was reviewed by an interagency committee with representatives from DOI (FWS, NPS, BLM, BOR, BIA, USGS), USDA, and Army.”  The same e-mail included an attached “list of supporting organizations” who “nominated the White River.”  This document, titled “White River Watershed National Blueway Support Organizations,” listed the Department of the Interior (i.e. U.S. Fish and Wildlife Service, the National Park Service, and the U.S. Geological Survey), the U.S. Department of Agriculture (i.e., Natural Resource Conservation Service and the U.S. Forest Service) and the U.S. Army Corps of Engineers.  In other words, most of the federal departments and agencies that were tasked with reviewing the nomination directly participated in the nomination. Please provide the names and positions of the individuals who participated in the interagency committee that reviewed the nomination for White River, as well as the NBS Working Group that worked with the committee.  Please provide a copy of all materials and recommendations that were produced by the interagency committee with regard to the White River nomination (including the committee’s recommendation to the Secretary).

The following set of questions relates to a staff briefing on the NBS, conducted by DOI Senior Advisor Rebecca Wodder and other Department of Interior personnel, which was organized and hosted by the Senate Energy and Natural Resources (ENR) Committee staff on January 28, 2013.  Shortly thereafter DOI provided written responses to a number of questions posed at the briefing (See Attachment 1). 

The following questions and requests relate to this attached DOI document:

9)      The attached Department responses state that “the watershed evaluation is based on the presence of a committed, diverse, stakeholder partnership or association that has developed a vision for the river and its watershed and how well that partnership or association has contributed to and promoted conservation, education, recreation, and sustainable economic opportunities.”  It continues, “the diversity of the partnership, having a shared vision, goals and objectives, the condition of the river and watershed, and having a strategy to integrate land and water management actions to achieve shared outcomes are the key elements of the evaluation, rather than the mix of public and private land.”  To further clarify this statement, please provide:

a.       A list of measurable or quantifiable factors, standards, or thresholds that are used to determine whether a “committed, diverse, stakeholder partnership or association” exists.

b.      A description of the “vision for the river and its watershed” that was used to justify the White River designation.

c.       A description of efforts undertaken by the Department to determine the extent to which the “vision for the river and its watershed” is shared by citizens and stakeholders who are not members of the “stakeholder partnership or association.”

10)  Again, each of the following items are described as “key elements of the evaluation.” Please explain each of these elements and provide any criteria used to measure these characteristics:

a.       “The diversity of the partnership.”

b.      “Having a shared vision, goals and objectives.”

c.       “The condition of the river and watershed.”

i.      In evaluating the “condition of the river and watershed” element, what types of conditions make it more likely that a Blueways designation will occur?

ii.      Specifically, with regard to the White River, what steps did the Department take to evaluate the “condition of the river and watershed”?

d.      “Having a strategy to integrate land and water management actions to achieve shared outcomes.”

11)  The attached DOI responses state that “the Secretary will not designate National Blueways that lack diverse support from government agencies within the watershed.  Local communities and businesses will be valued members of successful stakeholder partnerships and will determine their own roles and extent of engagement.”  The document further states that “watershed partnerships submitting nominations for National Blueway designation are evaluated for the diversity of stakeholders participating in the partnership and for the extent of support they can demonstrate from civic leaders at the local and state levels.”

a.       According to a Fish and Wildlife Service website, the watershed is “home to 1.2 million people.”[3]  What level of municipal participation should be exhibited in a “stakeholder partnership”  to meet the criteria outlined above, specifically, that the nomination will be “evaluated… for the extent of support they can demonstrate from civic leaders at the local and state level”?

b.      It appears that no municipal governments in Missouri participated in the nomination.  Did this raise concerns as the evaluation was considered?  If not, what steps are being taken to facilitate their inclusion in the management of the Blueway?

c.       On January 7, 2013, the Department provided a document to Congressional stakeholders, titled “White River Watershed National Blueway Support Organizations,” dated October 16, 2012.  This document lists 26 “support organizations.”  Eleven of these entities are listed as “Federal Agencies  & Ventures” (i.e., four USDA entities, two USGS entities, two NPS entities, the USFWS Southeast Region, the USACE Memphis District, and the Lower Mississippi River Valley Joint Venture).  Five of the “support organizations” are “State and Local Government.”  When over 60 percent of the “support organizations” listed are governmental entities and fewer than 10 percent (2 of 26) come from the business community, do you believe this meets the “diversity of stakeholders” criteria outlined in the DOI document referenced above?

d.      Of the 26 “support organizations” listed on the document dated October 16, 2012, please provide a list of the organizations and entities that were initially approached by the Department to encourage participation in the White River nomination.

We recognize that the attached DOI document was prepared and provided to Congress prior to your confirmation as Secretary.  If you would like to update, modify, or elaborate on any of the Department’s responses in this document, we would welcome the opportunity to hear your views. 

Thank you for your prompt attention to these concerns, issues, and questions.  We expect to receive responses to this letter as soon as possible, preferably no later than July 10, 2013.  At a minimum, we request responses to Questions 1 through 4 (including sub-questions) no later than July 10, but sooner if at all possible.  Furthermore, we request that response be provided on a rolling basis, if necessary, as they are prepared – with a final, comprehensive response sent upon completion.  Please do not hesitate to contact us with any questions or concerns, or if we can be helpful to you.

Sincerely,

U.S. Senator John Boozman
U.S. Senator Roy Blunt
U.S. Representative Rick Crawford
U.S. Representative Vicky Hartzler
U.S. Representative Tim Griffin
U.S. Representative Billy Long
U.S. Representative Steve Womack
U.S. Representative Jason Smith
U.S. Representative Tom Cotton

Copy: The Honorable Jo-Ellen Darcy, Asst. Secretary of the Army (Civil Works), Corps of Engineers

The Honorable Tom Vilsack, Secretary of Agriculture, U.S. Department of Agriculture

 

Enclosures (2).



[1] Letter to the Honorable Jack Reed (Interior Appropriations Subcommittee Chairman) and the Honorable Lisa Murkowski (Subcommittee Ranking Member), May 28, 2013.  See Attachment 2.

[2] Potential Benefits of being designated a National Blueway, Department of Interior Document provided to Congressional Stakeholders, January 2013 (Attached).