Rough Waters Ahead for American Heritage Rivers Communities?

Rough Waters Ahead for American Heritage Rivers Communities?
April 1, 1999



Warning that persons most affected by the American Heritage Rivers Initiative “have little idea of its potential scope, impact, and cost--both economic and regulatory”--the National Legal Center for the Public Interest, a Washington, DC-based public interest law and education foundation, released in December a three-part policy brief examining the Clinton Administration’s controversial program.

“With little fanfare and not a single vote, the American Heritage Rivers Initiative (AHRI) has become law by a Presidential Order,” notes the center’s president, Ernest Hueter, in a preface to the 52-page report. Yet, notes Hueter, “it is imperative that American citizens understand the Initiative--its good points and its possible fearful ramifications.”

"The American Heritage Rivers Initiative: A Magnificent Idea or the Great Land/Power Grab?" offers three chapters, first defining the AHRI and setting forth its expected benefits, then defending the initiative against its critics, and finally opposing both the AHRI concept and its implementation. The chapters were written, respectively, by George C. Landrith III, vice president and general counsel of the National Legal Center for the Public Interest; Roy Clark, associate director of the National Environmental Policy Act Oversight, Council on Environmental Quality; and Roger J. Marzulla, general counsel, Defenders of Property Rights.

The AHRI, put forward by President Clinton during his 1997 State of the Union Address, was created by his Executive Order 13061 in September of that year to "preserve, protect, and restore rivers and their associated resources. . . ." The initiative permits the President to designate as “American Heritage Rivers” waterways represented by communities that have voluntarily applied for that status. More than 135 rivers were nominated last year, of which 14 were chosen by the President for participation in the program.

The stated purpose of the initiative, according to Heritage Foundation research assistant Alexander Annett, “is to spur economic growth along designated rivers, protect their natural resources, and preserve their heritage.” The initiative provides for the creation of various committees and "river navigators" to help river communities comply with the rules and regulations that accompany American Heritage River status.

Opposition to the initiative, primarily from property owners and property rights advocates, continues to grow. Last year, the initiative survived a court challenge brought by four members of Congress from several Western states. Despite their opposition, and despite having very little idea of how the initiative will work in practice, the White House is proceeding with plans to implement the program.

In his defense of the AHRI, CEQ’s Clark says it is a "modest yet innovative federal initiative" that has been the victim of false information distributed by special interest groups to farmers, realtors, county commissioners, and others. Such information, writes Clark, has included reports of black helicopters landing on river banks to take control of rivers and charges that the United Nations was controlling AHRI.

"In spite of the concerted effort of a few special interest groups to dispense misinformation, the public is overwhelmingly supportive of the President’s Initiative," notes Clark. His contribution to the National Legal Center publication addresses what he terms "myths" associated with AHRI, including the notion that the program is a "taking" of private property without compensation.

"There is not any intent by the White House or any of the federal agencies to violate private property rights," Clark writes, emphasizing that the program is designed only to ensure that federal agencies help communities achieve their own goals. Participation in the initiative is 100 percent voluntary, he notes: communities nominate their rivers for designation and must show evidence of broad community support for the nomination; federal agencies are required to make information widely available during the AHRI consideration process; and members of Congress are permitted to veto nominations within their district.

In addition, AHRI requires no new funding, notes Clark, because it will draw upon existing funds from other federal agencies.

Clark’s defense of the program does not persuade Defenders’ Marzulla, who rips AHRI as "the greatest land grab since the founding of this nation, . . . achieved through an Executive Order, thereby circumventing the U.S. Congress which thus, in effect, ignores the right of our citizens to approve or disapprove." In short, warns Marzulla, the American people have no recourse with respect to the AHRI: Congress had no hand in its creation, and it will be implemented and managed entirely by unelected officials.

And once created, Marzulla cautions, AHRI will grow and amass more power.

"The history of today’s bloated federal bureaucracy, exorbitant taxation, and hyper-regulated economy is the history of federal ‘pilot’ and ‘community- based’ programs which were sold to local residents as mere federal assistance in accomplishing community goals," writes Marzulla.

AHRI’s threat to private property rights is considerable, notes Marzulla. Owners of property along designated rivers will find their investment and development plans restricted by AHRI guidelines, which may include no-growth policies and other land-use regulations. In order to “protect natural resources and preserve [river] heritage,” the AHRI is likely to prefer greenways and scenic areas, historical and cultural sites, sustainable development, and wetlands over private property rights.

Though touted by proponents as a way for the federal government to help local communities achieve the goals they themselves have set for their rivers, AHRI opponent Helen Chenoweth, Congresswoman from Idaho, strongly disagrees. In testimony to the House of Representatives in mid-1997, Chenoweth warned that AHRI designation will “further dilute local control and decision making. It will do nothing but add another layer of bureaucracy that must be dealt with; another hurdle to overcome when an entity, the private land owner or the state, desires to utilize the land.”

Marzulla is pessimistic about the prospects for improving on the initiative or making it less threatening to private property owners.

"Short of outlawing the program,” he notes, “there is little Congress can do and nothing local governments can do to change the decisions of the AHRI bureaucrats, since there is no law under which they operate and can be challenged." He urges Congress to act to prevent the President from making, by fiat, such “sweeping new assertions of federal control.”