Clean Water Goes to Court

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October 3, 2015

You may be ready to leave summer behind, but the events of the last few months will have a lasting impact on the way we protect clean water and wetlands. While we achieved a historic milestone for clean water protections and sportsmen’s access to healthy fish and waterfowl habitat, this victory has since been thrown into question by a number of court cases. Here’s what you need to know about where we stand.

The Clean Water Rule Takes Effect

First, the good news: On August 28, the final clean water rule announced back in May went into effect in 37 states and the District of Columbia. (We’ll get to the other 13 states in just a bit.) This means that most of the country now has greater regulatory certainty and more effective Clean Water Act protections for trout streams, salmon spawning grounds, and duck nesting habitat. It has been a long, contentious process, stretching back nearly 15 years, but it’s a win that all sportsmen should be proud of.

On the downside, 22 lawsuits have been filed to challenge the final rule. This should come as no surprise, since lawsuits are a common response to every significant federal rulemaking. Most of the lawsuits argue that the final rule goes too far, while some of the lawsuits claim that the final rule doesn’t go far enough.

13 States Miss Out

A common request in many of these lawsuits is for a judge to put the final rule on hold, pending the outcome of the legal proceedings. Some courts have declined to issue such an injunction and postponed any further action on these cases, in general, because the federal government would like to consolidate many of the lawsuits into a single challenge. However, three courts decided to rule on the injunction prior to August 28. The Southern District of Georgia and the Northern District of West Virginia courts held that it isn’t their place to issue an injunction because district courts aren’t the right venue for Clean Water Act challenges.

A judge from the District of North Dakota, however, did believe he could decide on challenges to the Clean Water Act and sided with the 13 states asking for an injunction.

On August 27, just hours before the new clean water rule took effect, the North Dakota court put the rule on hold in the 13 states that filed the challenge, but declined a request to extend the injunction to all 50 states. The court reasoned that these 13 states should not be able to force other states that want cleaner water to forego implementation of the new rule.

Here’s the bottom line: Out of the 22 challenges filed, only one court has decided to take action to impede the clean water rule. And you are being denied the benefits of better Clean Water Act protections if you live in one of the following states: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.

Other States Step Up to Support the Rule

On the bright side, seven states—Connecticut, Hawaii, Massachusetts, New York, Oregon, Vermont, and Washington—and the District of Columbia have joined the litigation in support of the final rule. These states are in favor of the final rule because “it protects their water quality, assists them in administering water pollution programs by dispelling confusion about the [Clean Water Act’s] reach, and prevents harm to their economies by ensuring adequate regulation of waters in upstream states.”

It isn’t clear how long it will take to resolve the ongoing legal battles around this rule. (You know the difference between a good lawyer and a bad lawyer, right? A bad lawyer will drag your case out for years while a good lawyer will make it last even longer.) And in the meantime, members of Congress still have the ability to undermine clean water protections from their seats on Capitol Hill.

Don’t let that happen. Tell your lawmakers that you support clean water. If you want to enjoy better hunting and fishing opportunities, you need to let them know.

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by: Paul Wilkins

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October 1, 2015

It’s Opening Day of Compromise Season

In exchange for doing his job, the Speaker of the House lost his job. Late last week, with the end of the fiscal year approaching and no viable budget deal having been prepared to keep the government open, John Boehner, the 61^st Speaker of the House, decided to resign at the end of October. He’s devoted nearly a quarter century of distinguished service in the House to the American people.

Ironically, having freed himself from the wrath of the right wing of his own party, the Speaker was able to get a continuing resolution passed with 91 Republican votes and 186 Democratic votes. This legislation keeps our government open and funded until December 11.

Before you think, “I’m not wasting five minutes of hunting season thinking about how Congress can’t get its act together,” consider taking five minutes to urge your members of Congress to follow Boehner’s lead. Because by setting his resignation for the end of October, Boehner has created a month-long open season for compromise. The Speaker is free of the constraints of party politics, if he chooses to be. He could craft a budget deal with Senate Majority Leader McConnell and the President and rely on votes from across the ideological spectrum of the House to pass it.

Before you think, “Well that’s nice, but why should sportsmen care?”—consider these three infographics. The first shows federal funding for conservation as a percentage of the federal budget:

CF-fed-budget_webTRR — Image courtesy of TRCP.

In the last 37 years, funding for conservation as a percentage of the federal budget has been cut in half. This is the money that pays for habitat protection and improvement on Forest Service land, National Wildlife Refuges, Bureau of Land Management acres, and private lands enrolled in Natural Resource Conservation Service programs. Quality habitat creates quality hunting and fishing opportunities, and if this trend line continues to drop, we will lose both.

This next graph shows where your tax dollars go:

CF-fed-budget_webTRR2 — Image courtesy of TRCP.

That’s right—only one percent of the money you pay in taxes goes toward conservation. Investments in conservation didn’t create our budget deficit and cutting investments in conservation won’t fix our budget deficit. In fact cutting conservation would likely increase our annual budget deficit, because federal investments in conservation have a great return on investment. That one percent of the federal budget that funds our national forests, wildlife refuges, and parks generates $646 billion in annual consumer spending on outdoor recreation.

That’s more than the country spends on gas or pharmaceuticals:

CF-fed-budget_webTRR3 — Image courtesy of TRCP.

So take five minutes to contact your members of Congress. Tell them to fill their tag during compromise season and stock conservation’s freezer with red meat: a budget deal that invests in fish, wildlife, public access, and your best days afield. Remind them of the dividends—your green going to the outfitters, retailers, gas stations, hotels, corner diners, and all the other American businesses that are a part of your hunting and fishing experiences. Your future seasons depend on it.

by: Joel Webster

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Authorization for the Land and Water Conservation Fund Has Expired. What now?

At midnight last night, the authorization for one of America’s most important and popular conservation programs expired. The Land and Water Conservation Fund (LWCF) has been used over the past 50 years to invest $16 billion into projects that benefit sportsmen, including the acquisition of public fishing areas, important wildlife habitat, and blocks of land now open for hunting and fishing. Thousands of sportsmen and women have worked tirelessly over the past several years to convince lawmakers to reauthorize the fund, and legislation enjoying strong bipartisan support has been proposed in both the House and Senate. LWCF authorization bills would likely pass through both chambers of Congress, if the bills could only get a vote.

But we’ve passed the September 30 deadline without action, and neither the House nor the Senate have given serious consideration to the pending legislation. While the continued dysfunction of Congress is more than disappointing, we should not view this passing deadline as ‘game over’ for this critical conservation funding program. Though new funds have stopped rolling into the account, the LWCF hasn’t been eliminated, and there is still time to reauthorize the fund in a way that doesn’t affect the way it works.

If that sounds confusing, let me explain: The original authorization for the Land and Water Conservation Fund linked the program to a trust account that grew by $900 million annually from funds generated primarily through oil and gas drilling on the Outer Continental Shelf. This system creates a balance—we reinvest in the environment using funds from an activity that does environmental damage.

But, despite $900 million being allocated towards the trust fund each year, the fund is considered discretionary spending, and LWCF dollars must be appropriated annually by Congress, which has only fully funded the program twice. As a result, dollars that previously went unappropriated have remained in the trust. These remaining unused dollars can still be used to fund LWCF projects until the trust funds are exhausted.

So, we do have a cushion to keep the fund working on great public access projects while we convince Congress to pass a clean reauthorization—and we think that’s likely to happen. But with the fund disconnected from its source of funding, we are living on borrowed time before the money runs out and the long-term future of a great habitat and access program is in jeopardy.

An opportunity to reauthorize the program could come with a bipartisan budget deal. Today, on the very first day of a new fiscal year that runs through September 30, 2016, the federal government is only being funded through a short term continuing resolution, passed just yesterday. A new budget will need to be passed for the remainder of the 2016 fiscal year by December 11, and we’re calling on all members of Congress to roll up their sleeves and work out a bipartisan budget deal that doesn’t shortchange conservation. Reauthorization of the Land and Water Conservation Fund should be a part of that deal.

If you like what the TRCP is doing to uphold your hunting and fishing traditions through conservation and access, please consider making a donation. We will use it in our fight to ensure that the Land and Water Conservation Fund is reauthorized and successful for another 50 years.

by: Guest

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A Film to Fuel the Fight for the Klamath River Basin

A few years ago, even my closest friends were skeptical. I was leaving the State Senate to raise money for a film that would market an epic conservation effort out West to an urban audience in an attempt to heal 100 years of racial wounds and restore an iconic fishery. Some people said I was taking a big risk to win over people who wouldn’t care.

I confess, when you put it all into one sentence, it does sound like a risk. But I believed that a wrong had to be made right, so I set out to make a world-class film about the 300-mile Klamath River, where one of the West’s greatest fishing runs had been all but destroyed. Stretching from Oregon to Northern California, the Klamath is a place torn apart by racism and the exclusion of tribal communities, and a place where some of America’s greatest agricultural leaders live. I hoped it could be a place of healing and bravery, too.

Klamath_river — Image courtesy of A River Between Us.

I wanted “A River Between Us” to speak to an audience who takes the subway to work, because if I could get them to care about the Klamath, I believed we could accomplish a very complex set of goals. First, we wanted to tell the very personal stories of the people who rely on the river, like farmers, anglers, and the tribes, and how these groups have come together to create a historic water rights compromise for the good of all. Using the film to score support, our hope was to begin working on the largest salmon and steelhead restoration in U.S. history.

Little did I know that most films don’t get finished or distributed. With the confidence that comes with ignorance, I got the film completed, paid for, and it comes out on October 13 (pre-order it on iTunes now.) It’s beautiful and I’m really proud of the story. Festival audiences have fallen in love with the characters and the notion that if you heal people, together we can heal the river.

Politics follows culture, so we tried to change culture. We’ve created momentum for the Klamath restoration project through social media, which makes the issue legitimate. For years, I’ve been on the receiving end of letters, petition requests, and write-your-Senator campaigns. They are good, but never as effective as showing a politician that culture has shifted right under their feet, and you’ve made it easy for them to get right on the bus and take credit. I made 26 behind-the-scenes clips of the film production and then spent two years lining up all my friends in conservation, culture, social justice, and politics to push them out. Every Facebook like, share, and send makes “A River Between Us” and the Klamath River restoration culturally relevant. That makes this a much easier ask, with four times the political muscle.

Fish_Klamath — Image courtesy of A River Between Us.

I recently put this entire issue on the President’s desk, assuming I’d only get 60 seconds to make the case for a lifetime worth of work. I boiled down the entire issue into a single sentence: With the President’s existing authority, we could remove four dams, provide liability assurances to industry, guarantee water for farmers, create trust between water-users and area tribes, and complete the largest salmon and steelhead restoration in U.S. history. To leverage a film, and say with confidence that America is talking about it, I had to make sure that every side, not just special interests or lobby organizations, were represented in the political push to save this river. My team has men and women, Republicans and Democrats, East and West coast, by design.

In the end, it’s as true today as it ever was: You can accomplish anything if you give all the credit away. I want everyone who has helped, from President Obama and Secretary Jewell right down to that college kid who sent me 20 bucks through the crowd-source campaign, to take credit. I’m happy knowing that our film is not the final chapter of the story about one of the West’s greatest rivers.

Jason A. Atkinson is a public servant, filmmaker, author, consultant, and passionate outdoorsman. Atkinson served in the Oregon legislature for more than 14 years, and was a candidate for Governor. He took a sabbatical from public life to make the film “A River Between Us,” which will be released in October 2015. He writes on public land, conservation, fish, and wildlife issues for various publications and is the author of “Inside Out: Stories of Oregon’s stewards, unsung heroes of the land. Field & Stream named him a Hero of Conservation in 2015.

by: Ed Arnett

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September 30, 2015

State vs Federal Public Land Management is Not an Apples-to-Apples Comparison

Today, the House Natural Resources Committee held a hearing to discuss improving coordination between the federal government and Western states—a conversation that is welcome and necessary—and the “need for the government to defer to state authority”—a sentiment that sportsmen should definitely question.

Access to state and federal public lands is vitally important to hunters, anglers, and other Americans who either work in or support the outdoor-recreation industry across America, particularly in the West. This $646-billion segment of our economy is often ignored—in fact, it was never even mentioned in the briefing memo for today. We believe that energy, forestry, water use, and wildlife should all be considered in the management of federal lands in the West, but future land management decisions cannot ignore sportsmen, our financial contribution to local economies, or our ongoing commitment to wildlife conservation.

Sportsmen are the first to agree that there are real challenges with federal lands management, but it’s impossible to make an apples-to-apples comparison between state lands management and the track record of federal agencies, because there are key differences in how states manage their lands compared to the federal government. States are constitutionally mandated to maximize profits from their state trust lands, which can reduce the quality of outdoor experiences and, at times, prohibit public access. In Idaho, for example, the state’s current asset management plan for “endowment” lands calls for dispersed recreational uses to be accommodated, provided that they don’t impair financial returns from other uses, like logging operations.

Federal lands are managed under a multiple-use mandate by which recreational opportunities are emphasized in management planning, while allowing energy development, grazing, and forestry to continue. If federal public lands had been managed for maximum profit since the time of Theodore Roosevelt and Aldo Leopold, our country would most likely look very different today.

States Do Play a Crucial Role—as Partners

greater-sage-grouse-web-blm-oregon-Jeannie-Stafford-USFWS — Image courtesy of Jeannie Stafford/USFWS.

The best solution for balanced management of our public lands is collaboration, not deferment. A great example of this can be found in the state and federal plans meant to benefit the greater sage grouse. Eleven Western states crafted conservation plans that are critical and meet the needs of their constitutional mandates, while the feds crafted complementary plans that, by default, must be stronger. All efforts—state plans, federal plans, and voluntary conservation measures undertaken by private landowners—were necessary to get to the not-warranted decision announced on September 22, and none of these plans can stand alone and deliver the necessary habitat conservation or regulatory certainty to avoid a future listing.

Opponents of the federal plans have no scientific evidence to support their claims that voluntary efforts alone are working, or that substituting state plans for federal plans would provide adequate conservation for sage grouse. In fact, the recently documented increase in males attending leks (up 63 percent from 2013, the second lowest count on record) has not altered the overall downward trend in the bird population observed from 1965 to present (an average annual decline of 0.83 percent.) This year’s increase falls within the normal range of fluctuation for game bird populations, which are known to shift rather dramatically with climatic factors, like precipitation. The majority of the greater sage grouse’s range has experienced excellent precipitation in the past two years, helping habitat conditions rebound and facilitating improved nesting, brood-rearing, and chick survival. Read more about that here.

Furthermore, the notion that the federal conservation plans for BLM and U.S. Forest Service lands are “just as restrictive, or more than, a listing decision” is simply wrong. Had the U.S. Fish and Wildlife Service listed the species, these same federal plans undoubtedly would have been required as part of an overall recovery plan, but the Service would also be required under Section 7 of the ESA to consult on every project impacting sagebrush habitat. This would certainly have added extensive time and costliness to the process.

Hunters and anglers agree that improvements should be made to forest and range management on federal lands, and we are ready to engage in those conversations with state and federal agencies. Better habitat means increased opportunities for sportsmen who pump dollars into local economies, and all the while, energy development, grazing, and other activities will continue. This opportunity for the West shouldn’t be squandered on political and litigious intervention. Congress needs only to support and fund efforts to implement critical conservation efforts and remember that sportsmen are an equally lucrative part of the Western economy.