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River Stewardship Issues for 2004

Posted: 10/07/2004
by Scott Collins

Each year American Whitewater highlights a series of issues affecting whitewater rivers across the nation by publishing our Top River Issues. American Whitewater staff selected this year's Top Issues because we feel they are of critical importance this year and are representative of our broad work in river conservation and access. This year we have chosen only five, but American Whitewater staff and our network of committed volunteers are working on hundreds of river's across the nation. The list encompasses river stewardship efforts through dam removal and hydropower licensing, as well as our efforts to counter high profile challenges to paddlers' rights to access rivers.

Each river issue presents a unique set of problems requiring unique and creative solutions, and we offer these case studies in river stewardship in the hope that paddlers will learn from them as we have. We also offer them as a rallying cry for the work that American Whitewater does on paddlers' behalf.

We at AW are proud to represent and assist paddlers on these complex and demanding projects and it is your support that makes this work possible. Without support for AW from the paddling community, we would lose ALL FIVE of our Top River Issues.

American Whitewater has had an incredibly successful 50 years of river conservation and we are more effective today than ever before. Our success in river conservation and access work is the direct result of our work model that leverages the knowledge and expertise of a small professional staff working closely with volunteers that have local knowledge and passion to protect their home rivers. This volunteer model allows American Whitewater to be a national leader in river conservation and access while operating on a lean annual budget. In October 2004, American Whitewater launches the River Stewardship Institute - a seven-day intensive fi eld course designed to empower river advocates with the tools and skills to make a difference protecting and restoring whitewater rivers in their region.

In close conjunction with the River Stewardship Institute, American Whitewater staff are developing a River Stewardship Tool kit that will function as the curriculum for this course and as an enduring online tool for river users nationwide. The River Stewardship Toolkit will offer the paddling community online advice, background materials and case studies as well as other information on a wide range of topics including dam relicensing and removal, water quality reporting, participation in public processes, and general river ecology, as well as a diverse array of river access issues.

By providing these tools to paddlers online, American Whitewater hopes to increase the effectiveness of our volunteer program. This is of critical importance because we have a small staff that can only work on a limited number of projects on an in-depth level, while we are lucky to have hundreds of individuals willing to dedicate their time on a volunteer basis to river stewardship projects. Furthermore, the RST will catalog the institutional knowledge of current AW staff and volunteers and will share that knowledge with anyone willing to work to protect or restore a river in their own back yard.

2004 marks an especially important year for river conservation and access because 2004 is a national election year. Federal regulations and the politics that drive them control almost every aspect of river stewardship. The past four years has made this painfully evident as our ability to stand up to corporate pressures on our nation's rivers has been weakened in too many ways to count. As citizens in a democratic society we all have a responsibility to vote, and as paddlers we have a responsibility to make an informed vote that considers our vote's impacts on the rivers we enjoy. Voting is just one step - your step - in the democratic process. It is essential for each of us to educate ourselves about each candidate running for offi ce at the local, state, and national level. Research your candidates - learn their position on the publics' rights to participate in public processes like those we use to protect rivers. Remember, rivers can't vote - you can.



Chattooga River - Georgia, South Carolina, and North Carolina

Issue: The United States Forest Service has renewed a ban on paddling over 20 miles of the Wild and Scenic Chattooga River.

Goal: To secure responsible and equitable access on this federally managed river, while defeating a precedent that could lead to discriminatory paddling bans on other rivers.

Current Status: Our 100 page appeal of the USFS decision to renew the paddling ban is in the office of the Chief of the USFS, undergoing analysis by a team of USFS experts and awaiting a decision by the Chief. A decision is expected on or before September 23rd, 2004.

In their decision to ban paddling and the analysis that lead up to the decision, the Sumter National Forest made bold and unsupported claims that, if supported by the Chief, could change the way the USFS manages the recreational use of many of its prized whitewater rivers. The section of the Chattooga River in question was designated as a National Wild and Scenic River specifically because of its incredible value as a whitewater paddling resource. The Sumter National Forest, though, has decided to ban paddling because they feel that paddling is incompatible with angling and have suggested that paddling is an inappropriate wilderness activity.

Our appeal clearly shows that the US Constitution, USFS regulations, The Wild and Scenic Rivers Act and other federal legislation, case law, relevant scientific literature, and any concept of equality strongly support our right to paddle the Chattooga River Headwaters. Our appeal was drafted by our incredible pro bono attorney Nathan Galbreath from the Dallas office of Patton Boggs Law Firm, AW Board Member Don Kinser, AW Regional Coordinator Charlene Coleman, and AW Eastern Regional Director Kevin Colburn. Our document professionally and inarguably refutes each false claim made by the Sumter National Forest, and has a vast reservoir of references to support our case. We are now eagerly awaiting a decision by the Chief of the USFS. We would like to thank the Georgia Canoeing Association, the family and friends of Charles Paul Horner, and our other donors for supporting this very important effort to protect paddlers' rights.

Next Steps: If the Chief of the USFS rules in our favor, then paddlers will have the same rights as everyone else to enjoy the entire Chattooga River in the fall of 2004, and we will begin a new collaborative relationship with the Sumter National Forest. If the Chief rules in favor of the Sumter National Forest then we will challenge his decision in court, with the help of Patton Boggs. A court challenge will require time and resources and we hope we can count on our membership to support such a challenge if the need arises.

Precedent: The USFS paddling ban on the Chattooga sets a bad precedent for Wild and Scenic River management. The previous ban was enacted long ago with no analysis and no justification, and has motivated 8 years of opposition from the paddling community. This prejudicial river management plan must be challenged. Rive closures should only be permitted where proper scientific analysis warrants the closure.



Grand Canyon, Colorado River - Arizona

Issue: The 25 year wait continues for private boaters lucky enough to already be on the permit list; however, the list is closed to all new applicants pending the release of a final EIS for the Colorado River Management Plan. Meanwhile the National Park Service's plans to release the EIS continue to experience delays.

Goal: Reducing the private boater wait for launch permits to 3 years or less, and protecting the high quality wilderness experience.

Current Status: The Park has delayed issuing an environmental impact statement (EIS), originally promised in summer 2003. When released, this EIS will list several alternatives for managing recreation on the Colorado River through the Grand Canyon. American Whitewater's Director Jason Robertson and President Kevin Lewis have been working with our affiliate, the Grand Canyon Private Boaters Association (GCPBA), representing private boaters to the Park Service. The general assumption, which has been verified by multiple sources within the Park Service, is that the delays have been caused by a rift between the Grand Canyon unit and the headquarters staff over whether to maintain a virtual status quo or to make more substantial changes to access and use by private and commercial visitors.

American Whitewater has retained a legal team to represent private boater interests and is working closely with the GCPBA to ensure that your interests are represented.

Next Steps: Submit comments on the EIS when it is released and advocate for improved access.

Contact:

Jason Robertson, American Whitewater Access Director



Nooksack River - Washington

Issue: Navigability determination of Nooksack River and the FERC's failure to terminate a hydro project operating unlawfully without adhering to federal licensing requirements.

Goal: Overturn the FERC's navigability determination and terminate hydro project operations until a licensing proceeding is completed.

Current Status: Non-federal hydropower projects are required to obtain a license from the Federal Energy Regulatory Commission (FERC) if the project is 1) located on a navigable waterway; 2) federal lands or 3) connected to the interstate electric grid. In 1997 the Nooksack Falls hydropower project was abandoned by the previous owner. A new owner has refurbished the project but contends the project does not require a FERC license.

In order to resolve the issue the FERC initiated studies to determine if the Nooksack project was indeed jurisdictional based on one of the three licensing criteria. In March 2004, the FERC declared the Nooksack Falls project jurisdictional thereby requiring a hydropower license to operate. FERC determined jurisdiction based on the fact that transmission for the Nooksack Falls project went across U.S. Forest Service lands. The FERC concluded that the Nooksack River was not a navigable waterway. American Whitewater disagrees with the FERC's navigability determination.

Interstate commerce by definition makes a river a navigable waterway. The Nooksack was used for log drives to mills that exported wood products across state lines. Furthermore Washington law defi nes a navigable waterway as a river that can float a "bolt of shingles". Historical records available to the FERC identify shingle drives on the Nooksack. In addition, the Nooksack presently is used for commercial rafting purposes just downstream of the powerhouse. Commercial clients travel from adjacent states and Canada to raft the Nooksack. FERC is also aware of these commercial rafting operations. American Whitewater believes the FERC erred in their navigability determination. FERC's failure to identify the Nooksack as a navigable waterway sets a bad precedent for licensing other potential hydropower projects. American Whitewater has appealed the FERC ruling requesting the FERC reconsider the navigability of the Nooksack.

Presently, the Nooksack Falls project is being operated without a license despite the FERC's ruling. Section 23(b)(1) of the Federal Power Act requires that a jurisdictional project must have a license in order to operate. Further, the Commission has previously enforced this legal requirement by ordering jurisdictional projects to stop operating until the licensing process is complete and a new license can be issued. The FERC should not deviate from that enforcement policy here. Nor does it make sense for the FERC to allow a project to operate until a license can be issued - this would obviate the need, purpose and function of licensing, in addition to driving down any incentive for the prospective licensee to complete the licensing process.

This issue is not only one of administrative function, but of material harm to the river and its biological and recreational resources, which include endangered species and popular whitewater runs. The licensing process established by Congress in the Federal Power Act was designed to balance power and non-power values. Congress recognized that our nation's waterways play an integral role in commerce as well as part of the public trust. Hydropower operations and their associated facilities and dams have the potential to monopolize river resources for a single purpose. The Nooksack Falls hydropower operator is defying the intent of Congress and the purpose of the Federal Power Act.

Next Steps: File petition requesting that FERC issue a cease operations order and initiate a licensing proceeding. Track American Whitewater's appeal on the FERC's navigability determination for the Nooksack River.

Precedent: The FERC's navigability determination must be overturned otherwise other hydropower projects may escape licensing despite the presence of commercial rafting operations and historical records of interstate commerce.

The owner of the Nooksack Falls hydropower project is operating a project in violation of federal law. The FERC must enforce its clear legal mandate under the Federal Power Act and immediately order the Nooksack Falls project to stop operating until a project license is issued. Failure to do so jeopardizes the FERC's jurisdictional authority and enforcement credibility not to mention sending inconsistent messages to existing hydro operators complying with the licensing requirements under the Federal Power Act.

Contact:

Tom O'Keefe okeefe@riversandcreeks.com
Rebecca Sherman rsherman@americanrivers.org
John Gangemi jgangemi@digisys.net



Willimantic River Dam Removal and Restoration - Connecticut

Issue: Innovative paddler-driven dam removal project is gaining momentum on the Willimantic River. The river is clogged with small dams that have ended major native fish migrations, covered up whitewater features and denied the town of Willimantic the many social benefits of having a free flowing river flow through their town.

Goal: To restore whitewater paddling opportunities, native fish runs, and a community's river district.

Current Status: Dan Mullins is a man with a vision who is bringing that vision to fruition with startling speed and efficiency. Dan drove through the ailing mill town of Willimantic, CT two years ago and saw the potential for green city parks where there are now rail yards, whitewater play features where there are stagnant reservoirs, and thriving fish migrations where today there are none. So Dan contacted American Whitewater about becoming an intern and promptly started a non profit organization called the Willimantic Whitewater Partnership (check out www.willimanticwhitewater.org). He pulled together a board of directors, convinced the state of Connecticut to change their anadramous fish recovery plan to include the Willimantic River, built a team of volunteer resource experts, and began holding town meetings to discuss the potential for removing the four small dams on the Willimantic River. While momentum is building, the dams are still in place and much work remains for the coming years. The Willimantic has a vast restoration potential that we feel must be met.

Dan's work is a model for how paddlers can effect positive change for rivers everywhere and American Whitewater is proud to be part of his movement to restore the Willimantic River.

Next Steps: 2004 and 2005 will be telling years as Dan works with the dam owners and other stakeholders to reach dam removal agreements. The paddling community will likely have to show their support for the dam removal project in the coming year.

Precedent: American Whitewater has supported numerous dam removal projects over the years including on the Tuckasegee River (NC), Twelvemile Creek (SC), the Penobscot River (ME), and the White Salmon River (WA).

Contact:
Kevin Colburn, Eastern Regional Director



Saranac and Ausable Rivers - New York

Issue: Dam owner seeks complete exclusion of whitewater paddling below its dams located on navigable waters.

Goal: To secure fair and reasonable public access to the Saranac and Ausable rivers while preventing New York State Electric and Gas (NYSEG) from claiming a corporate monopoly on these breathtaking rivers.

Current Status: NYSEG exemplifies dam owners seeking profit from a river at the American Public's expense, and they are willing to go to virtually any length to meet their goals. Throughout the relicensing of the Ausable Chasm on the Ausable River and the High Falls and Kent Falls reaches on the Saranac Rivers - located in Northeastern New York - NYSEG has opposed all paddling use of the rivers they control. American Whitewater has collaboratively worked with dam owners on roughly fifty recreational flow studies and only failed to successfully conclude three of these. Two of those three were the Ausable and Saranac projects.

The Federal Energy Regulatory Commission (FERC) has agreed with all of our arguments in opposition of NYSEG's stated goal of excluding paddlers from the Ausable Chasm. NYSEG claimed concerns regarding public safety, liability, terrorism, corporate relations with an adjacent corporation, difficulty - and the list goes on. Still, after agreeing that paddling is entirely possible and reasonable the FERC accepted NYSEG's request to lock paddlers out of the Chasm. We are fighting this unsupported proposed decision by the FERC and hope to convince the FERC that our interests must be met on the Ausable River. We expect a ruling from the FERC in late 2004.

NYSEG completed two recreational flow studies with American Whitewater on the Saranac River in 2003, agreed to the results, submitted the studies to FERC, and then inexplicably asked the FERC to disregard the studies entirely claiming that their own studies were biased and flawed. They also questioned American Whitewater's staff and volunteers' professional integrity. NYSEG has decided to fight hard against paddling use on the Saranac River, and has exhibited an incredible and unjustifiable disrespect for American Whitewater and our members. The battle lines have been clearly drawn by NYSEG and American Whitewater has stepped up consistently with strong counter arguments every step of the way. The FERC will decide the ultimate outcome of this conflict ridden project in late 2004 or early 2005. We would like to thank the Scott Murray Foundation and each of our 296 members in New York for their support of this very important and demanding project.

Next Steps: We expect to have to continue filing comments to the FERC regarding the Saranac Project but the Ausable Project is essentially awaiting a final decision from the FERC. We will have to continue to argue every potentially precedent setting and anti-paddling point that NYSEG makes over the coming months and years.

Precedent: NYSEG represents the corporate pressure that is constantly vying for the public's rivers. While many dam owners work with the public to share the rivers they profit from, NYSEG fights for absolute control. Without American Whitewater's presence, NYSEG could change the face of paddling in New England and elsewhere by successfully claiming that dam owners have no responsibility to mitigate their impacts on recreation.

Contact:
Kevin Colburn, Eastern Regional Director



2004 River Issues Map