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75-726 PS 2002

H.R. 2963, TO ESTABLISH THE

DEEP CREEK WILDERNESS

AREA

LEGISLATIVE HEARING

BEFORE THE

SUBCOMMITTEE ON FORESTS AND

FOREST HEALTH

OF THE

COMMITTEE ON RESOURCES

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

October 16, 2001

Serial No. 107-67

Printed for the use of the Committee on Resources

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house

or

Committee address: http://resourcescommittee.house.gov

(II)

COMMITTEE ON RESOURCES

JAMES V. HANSEN, Utah, Chairman

NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska,

Vice Chairman

W.J. ‘‘Billy’’ Tauzin, Louisiana

Jim Saxton, New Jersey

Elton Gallegly, California

John J. Duncan, Jr., Tennessee

Joel Hefley, Colorado

Wayne T. Gilchrest, Maryland

Ken Calvert, California

Scott McInnis, Colorado

Richard W. Pombo, California

Barbara Cubin, Wyoming

George Radanovich, California

Walter B. Jones, Jr., North Carolina

Mac Thornberry, Texas

Chris Cannon, Utah

John E. Peterson, Pennsylvania

Bob Schaffer, Colorado

Jim Gibbons, Nevada

Mark E. Souder, Indiana

Greg Walden, Oregon

Michael K. Simpson, Idaho

Thomas G. Tancredo, Colorado

J.D. Hayworth, Arizona

C.L. ‘‘Butch’’ Otter, Idaho

Tom Osborne, Nebraska

Jeff Flake, Arizona

Dennis R. Rehberg, Montana

George Miller, California

Edward J. Markey, Massachusetts

Dale E. Kildee, Michigan

Peter A. DeFazio, Oregon

Eni F.H. Faleomavaega, American Samoa

Neil Abercrombie, Hawaii

Solomon P. Ortiz, Texas

Frank Pallone, Jr., New Jersey

Calvin M. Dooley, California

Robert A. Underwood, Guam

Adam Smith, Washington

Donna M. Christensen, Virgin Islands

Ron Kind, Wisconsin

Jay Inslee, Washington

Grace F. Napolitano, California

Tom Udall, New Mexico

Mark Udall, Colorado

Rush D. Holt, New Jersey

James P. McGovern, Massachusetts

Anibal Acevedo-Vila, Puerto Rico

Hilda L. Solis, California

Brad Carson, Oklahoma

Betty McCollum, Minnesota

Allen D. Freemyer, Chief of Staff

Lisa Pittman, Chief Counsel

Michael S. Twinchek, Chief Clerk

James H. Zoia, Democrat Staff Director

Jeff Petrich, Democrat Chief Counsel

SUBCOMMITTEE ON FORESTS AND FOREST HEALTH

SCOTT McINNIS, Colorado, Chairman

JAY INSLEE, Washington, Ranking Democrat Member

John J. Duncan, Jr., Tennessee

John E. Peterson, Pennsylvania,

Vice Chairman

Mark E. Souder, Indiana

Michael K. Simpson, Idaho

Thomas G. Tancredo, Colorado

J.D. Hayworth, Arizona

C.L. ‘‘Butch’’ Otter, Idaho

Dale E. Kildee, Michigan

Tom Udall, New Mexico

Mark Udall, Colorado

Rush D. Holt, New Jersey

Anibal Acevedo-Vila, Puerto Rico

Betty McCollum, Minnesota

(III)

CONTENTS

Page

Hearing held on October 16, 2001 .......................................................................... 1

Statement of Members:

McInnis, Hon. Scott, a Representative in Congress from the State of

Colorado ......................................................................................................... 1

Prepared statement of ............................................................................... 3

Rahall, Hon. Nick J. II, a Representative in Congress from the State

of West Virginia, Prepared statement of ..................................................... 4

Udall, Hon. Mark, a Representative in Congress from the State of Colorado ................................................................................................................ 4

Statement of Witnesses:

Kimbell, Abigail, Acting Associate Deputy Chief, Forest Service,

U.S. Department of Agriculture .................................................................. 6

Prepared statement of ............................................................................... 7

Chart submitted for the record ................................................................ 9

Martin, John, County Commissioner, Garfield County, Colorado ................ 14

Prepared statement of ............................................................................... 15

Smith, Steven W., Associate Regional Representative, Sierra Club, on

behalf of the Colorado Wilderness Network ............................................... 17

Prepared statement of ............................................................................... 19

Letters submitted for the record .............................................................. 22

Stone, Tom C., Eagle County Commissioner, State of Colorado .................. 32

Prepared statement of ............................................................................... 32

Resolution submitted for the record ........................................................ 34

Treese, Christopher J., External Affairs, Colorado River Water

Conservation District, Colorado Springs, Colorado .................................... 16

Prepared statement of ............................................................................... 16

Additional materials supplied:

Best, Joel E., Commander, High-altitude ARNG Aviation Training Site,

Letter submitted for the record ................................................................... 42

(1)

LEGISLATIVE HEARING ON H.R. 2963, TO

ESTABLISH THE DEEP CREEK WILDERNESS

AREA, AND FOR OTHER PURPOSES

Tuesday, October 16, 2001

U.S. House of Representatives

Subcommittee on Forests and Forest Health

Committee on Resources

Washington, DC

The Subcommittee met, pursuant to call, at 5:05 p.m., in Room

1334, Longworth House Office Building, Hon. Scott McInnis [Chairman of the Subcommittee] presiding.

STATEMENT OF HON. SCOTT McINNIS, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF COLORADO

Mr. MCINNIS. The Subcommittee on Forests and Forest Health

will come to order. We are meeting today obviously to hear testimony on the Deep Creek Wilderness bill.

I appreciate the understanding of the witnesses who have traveled so far. I see several of them there, Chris, Steve, a number of

others, commissioners that have come down, John, Tom, et cetera.

You can have a complete understanding, and I am sure that you

will probably experience it on your way home, in regards to the airplanes.

By the way, my rate to Denver, my flight costs to Denver was $165, and Denver to Grand Junction was $365. So we out in there,

the rural areas, really do get it stuffed to us.

But we will get back to the bill and off the airlines. Anyway, I

do appreciate everybody making the effort to come out here. I am

delighted that we are able to finally bring this today for a hearing.

This is the first step in what I hope will be a quick journey of

H.R. 2963 through the House of Representatives en route to the

Senate and eventually to the President’s desk.

I introduced this legislation late last month and called this hearing today in hopes of seeing it signed into law before the end of the

107th Congress next year. Prior to September 11th, actually I was

in hopes that we could get it done before December of this year,

but that does not appear to be likely.

I look forward to working with my colleagues on the Subcommittee on Forest Health, the BLM, my friends and constituents

in western Colorado, including many of whom are here today.

2

As our witnesses are no doubt aware, Deep Creek has a very special place in my heart, as I know it does in those of you that have

come today and the people that you represent. I grew up literally

a matter of minutes away from the area and spent a great deal of

time hiking there as a boy. In fact, most of my observations of the

canyon were from the top looking down. They were not from the

ability to go into the canyon, although I have been up into the canyon and climbing up.

So I think it is a very critical point in this bill that we allow

other people the same privilege that I had, and that was that I had

motorized access, and I was able to go to the rim of the canyon and

look down into that canyon and see what it was. If I would have

been restricted as a small boy to take horseback up in there, I

probably wouldn’t have been—I probably would have been 14 or 15

before I would have had the capability to ride a horse up into that

country and certainly to hike up into that country. To see what I

saw as a very young man would not be possible without the access

that I intend to protect with this bill, which is the result of the

compromise that we have put together for this bill.

In fact, when my scheduled allows, I like to head back up there

and enjoy the majestic views of Deep Creek’s wild and pristine forest. I want to add one other sentence here; that is, that most people that are going to get to see Deep Creek are not going to be the

hearty young people. Most of the people that get to see Deep Creek

are the ones that are going to be able to have motorized access to

get up to the edge and look down into this beautiful area, or those

who can afford to charter an airplane and circle Deep Creek, which

I have done on several occasions. I think it is very important because of the beauty, the intense beauty of this land, that as many

people as possible be allowed to have the privilege that all of us

have had, and that is that kind of observation.

These lands are special for reasons that are far more important

than the relative proximity to my hometown. Deep Creek is truly

one of Colorado’s wildland wonders. It is a natural treasure that

deserves special congressional protection. When our predecessors

on this Committee first drafted the Wilderness Act over three decades ago, there is no question it had places like Deep Creek in

mind.

Together we begin the process of considering wilderness designation for this special place. Like any proposed wilderness designation, this is not without some complications. There are some who

would like to continue to expand the boundary substantially beyond the upper rim of the Deep Creek Canyon as called for in

H.R. 2963, this in spite of the fact that in 1998 some of Colorado’s

most respected conservationists outlined a wilderness plan for Deep

Creek with boundaries nearly identical to those proposed in my legislation.

I should add that this piece of legislation is the result of lots of

compromise on behalf of lots of people, and I realize that on one

side or the other there will be people who want to continue to move

the goal line. But it is my intent to stay with the compromise that

this bill reflects, and, again, to be repetitive, but nonetheless important, that these comply with the boundaries that are almost

identical to those of the 1998 so-called wilderness plan.

3

In addition, there are some who are less than pleased with the

tough language in the bill protecting Colorado water rights. Clearly

my precedent has been in the past, and let me make it clear, I am

willing to listen to substantial suggestions on this point, but I am

not going to throw the door wide open. In fact, I will even go further than that. When it comes to water rights, that door will remain tightly closed. The water rights of Colorado are the primary

issue that I am concerned about on any wilderness designation.

And, as many people know, water in Colorado is equivalent to

blood, and once we give those water rights or endanger those water

rights in any manner whatsoever in the future, it will be next to

impossible to reclaim them.

That said, I look forward to working with those who have an interest in the water rights issue, including the State of Colorado,

the Forest Service and our witnesses here today.

Finally, there are some who have raised concerns about the Colorado Army National Guard continuing its years-long practice of

conducting aerial training exercises on Deep Creek under wilderness designation. It is my understanding from all sides that the

Colorado National Guard has been both an able and conscientious

steward of this resource during its time training there, and has

conducted its exercise in a manner that has no appreciable impact

on the landscape. This training is absolutely critical and as should

clearly be demonstrated by the sacrifice that people are making

today in mountainous terrain in Afghanistan. Who knows, some of

those people may have got their training in our Colorado mountains.

I can tell you that during my tenure in Congress, I have never

had one complaint, never a letter, never a phone call, never a conversation complaining against the Colorado Air National Guard in

regards to their flight service in Eagle. In fact, every time we have

a plane missing up there, we need a rescue, they are the first people we call to go in and do rescue and assist us with the helicopters, and fortunately they have been very good about doing that.

While disagreement over these issues is real, although I think

really the disagreement that we have here is pretty minimal, I nevertheless am confident that the good faith negotiations that we

have put forth so far have yielded a consensus-oriented agreement

in a bill, just as we did last year with our Colorado Canyons Wilderness bill and just as we did most recently with Mr. Udall’s

James Peak legislation.

I believe our sheer desire to see this natural jewel preserved and

protected will ultimately prevail.

I thank our witnesses for coming today and I look forward to

their comments.

[The prepared statement of Mr. McInnis follows:]

Statement of Honorable Scott Mcinnis, Chairman, Subcommittee on Forests

and Forest Health

I’m delighted to convene this legislative hearing on HR 2963, the Deep Creek Wilderness Act. Today’s hearing is the first step in what I hope will be a quick journey

for HR 2963 through the House of Representatives en route to the Senate and eventually to the President’s desk. I introduced the legislation late last month, and

called this hearing today, in hopes of seeing it signed into law before the end of the

107th Congress next year. I look forward to working with my Colleagues on the

Subcommittee, the Forest Service, the BLM and my friends and constituents in

4

western Colorado — including John, Tom, Chris and Steve who are here to testify

today in pursuit of that objective.

As our witnesses are no doubt aware, Deep Creek has a special place in my heart,

as I know it does in their’s. I grew-up literally a matter of minutes away from the

area, and spent a great deal of time there hiking as a boy. In fact, when my schedule allows, I still like to head-up there and enjoy the majestic view of Deep Creek’s

wild and pristine forests.

But these lands are special for reasons far more important than there relative

proximity to my hometown. Deep Creek is truly one of Colorado’s wildland wonders;

it’s a natural treasure that deserves special Congressional protection. When our

predecessors on this Committee first drafted the Wilderness Act over three decades

ago, there’s no question that it had places like Deep Creek in mind.

Today, we begin the process of considering Wilderness designation for this special

place. Like any proposed Wilderness designation, this one is not without some complications. There are some who would like to expand the boundaries substantially

beyond the upper rim of Deep Creek canyon, as called for in HR 2963. This, in spite

of the fact that in 1998 some of Colorado’s most respected conservationists outlined

a Wilderness plan for Deep Creek with boundaries nearly identical to those proposed in my legislation. I would submit that if it was good enough in 1998, it’s good

enough today. In addition, there are some who are less than pleased with the tough

language in my bill protecting Colorado water rights. Let me be clear: I am willing

to listen to substantive suggestions on this point, but I’m not going to throw the

door wide-open to a host of new federal reserved water rights in conjunction with

this designation. That said, I look forward to working with those who have an interest in this water rights issue including the State of Colorado, the Forest Service and

our witnesses here today in working out a solution that hopefully I say hopefully

is agreeable to all sides. Finally, there are some who have raised concerns about

the Colorado Army National Guard continuing its years-long practice of conducting

aerial training exercises in Deep Creek under a Wilderness designation. It’s my understanding from all sides that the Colorado National Guard has been both an able

and conscientious steward of this resource during its time training there, and has

conducted its exercises in a manner that has had no appreciable impact on the landscape. During this hour of international conflict, I think the last thing any of us

want is to undermine the training operations of our military, particularly training

exercises like those in question here that closely replicate the rugged and harsh conditions now confronting our military in its conflict abroad.

While disagreement over these issues is real, I’m nonetheless confident that goodfaith negotiations will yield a consensus-oriented agreement, just as it did last year

with our Colorado Canyons Wilderness bill and just as it did most recently with Mr

Udall’s James Peak legislation. I believe our shared desire to see this natural jewel

preserved and protected will ultimately overcome any and all disagreements we encounter along the way.

I thank our witnesses for making the trip to Washington for this hearing and I

look forward to hearing their comments today.

Mr. MCINNIS. Mr. Udall, would you like to make an opening

statement for the Minority?

STATEMENT OF HON. MARK UDALL, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF COLORADO

Mr. UDALL OF COLORADO. Thank you, Mr. Chairman.

First I would ask unanimous consent that the statement of the

Ranking Member Mr. Rahall be included in the record.

Mr. MCINNIS. Certainly.

[The prepared statement of Mr. Rahall follows:]

Statement of the Hon. Nick J. Rahall, a Representative in Congress from

the State of West Virginia

H.R. 2963, the Deep Creek Wilderness Act, introduced by Subcommittee Chairman Scott McInnis, would provide protection to a beautiful, spectacularly deep canyon. Yet, protection for the 8,000-acre narrow gorge will not be permanent if nothing

is done to protect the uplands and watershed.

Another bill, H.R. 944, introduced by Representative Diane DeGette, would designate 22,170 acres in Deep Creek as wilderness, almost three times the acreage in

5

H.R. 2963. Unfortunately, H.R. 944 is not the subject of this hearing, even though

it was introduced in March, six months before the Chairman’s bill was introduced.

The Colorado Wilderness Network, comprised of environmental organizations,

businesses, and local governments, supports the acreage designation for Deep Creek

in Representative DeGette’s bill. I am advised that snowmobiling in some areas is

the only existing use that would be prohibited if 22, 170 acres were designated as

wilderness. I also understand that discussions are underway between the Colorado

Wilderness Network and snowmobiling interests to craft a compromise. I encourage

these discussions to continue so that we can enact a bill that enjoys widespread support.

I also would like to highlight three additional concerns with the bill:

The first has to with overflights and landings in the proposed wilderness area.

Section 5 would codify a memorandum of understanding between the Forest Service,

Bureau of Land Management and Colorado Army National allowing for overflights

in proposed wilderness. As the Forest Service points out in its testimony, the Colorado Army National Guard conducts training exercises in the Deep Creek area between Thanksgiving and Memorial Day. Not only does the Colorado Army National

Guard fly over the proposed wilderness area, but it also lands in Deep Creek as

many as four times a week. Routine helicopter landings are inappropriate in a wilderness area. I look forward to working with the Forest Service, BLM and Colorado

Army National Guard to more fully understand the use of the area. We need to find

out if there are other appropriate areas for such exercises to occur.

H.R. 2963 also expressly denies the Forest Service and BLM any reserved water

right for the wilderness area. While there are no water rights in the proposed wilderness, there are perfected and conditional water rights upstream and on streams

tributary to Deep Creek that have the potential to affect the proposed wilderness.

Future water uses upstream have the potential to dewater the proposed wilderness.

In its testimony, the Forest Service recommends that we work with the Colorado

Water Conservation Board to develop language to protect the water resource values

of the proposed Deep Creek wilderness. I think this is a good suggestion and look

forward to working on this.

Finally, several provisions of the bill are confusing and contradictory to the establishment of the area as wilderness. The bill appears to be a cut and paste of wilderness legislation and national conservation area legislation. Standard language ensuring that the wilderness lands designated are managed consistent with the Wilderness Act of 1964 is not used in Section 5. We need to ensure that the bill is properly drafted before we move forward.

We need to enact legislation that provides meaningful protection to this spectacular area; this bill as introduced does not. I look forward to working with the sponsors and others to craft legislation that we can all support.

Mr. UDALL OF COLORADO. I just want to be very brief, because

I want to hear the testimony of the witnesses. I wanted to welcome

my fellow Coloradans who are here. Your understanding and expertise in dealing with this beautiful area is going to be very helpful

as we move ahead.

I do want to educate myself further about some of the details of

the legislation and look forward to asking some questions so that

I can understand it better, and I want to work with everybody involved to resolve any problems and see if we can find a way to give

appropriate additional protection to these lands.

With that, Mr. Chairman, I would yield back.

Mr. MCINNIS. Thank you. We will go to our witnesses. We have

two panels today, and, first of all, Abigail Kimbell, our Acting Associate Deputy Chief. She came from Colorado.

Thank you very much. I should have noticed you. I appreciate

your service, by the way. Thank you for your efforts, and you may

proceed.

As you know, on this Committee we have a 5-minute rule, and

in light of the fact that we are going to have votes here pretty soon,

I would ask that people respect that rule, and that would also

allow some questioning by the panel.

6

Thank you again. You may proceed.

STATEMENT OF ABIGAIL KIMBELL, ACTING ASSOCIATE

DEPUTY CHIEF, USDA, FOREST SERVICE

Ms. KIMBELL. Thank you, Congressman.

Mr. Chairman, members of the Committee, thank you for the opportunity to discuss H.R. 2962, the Deep Creek Wilderness Act.

We appreciate the Committee’s interest in protecting the unique resources in Deep Creek.

Deep Creek is located on lands managed by the United States

Forest Service and the Bureau of Land Management. In 1995, the

Forest Service and the Bureau of Land Management issued a joint

determination that Deep Creek was eligible for designation under

the Wild and Scenic Rivers Act.

We acknowledge wilderness designation for Deep Creek as being

consistent with those recommendations that Deep Creek be managed as a wild river. Deep Creek has long been recognized for outstanding features such as the ones you mentioned, and these features were created or exist because of riparian and water-related

values. These include high-quality, scenic, natural and pristine canyon landscape and recreation and geologic values associated with

cave formation in the canyon.

Deep Creek is a perennial stream with flows that originate mainly from snow in upper elevations of its watershed. A statewide survey conducted in 1993 by the Colorado Natural Heritage Program

identified Deep Creek as containing one of the State’s most pristine, high-quality occurrences of significant riparian communities,

including many rare plant species. Clearly the water that flows in

Deep Creek is a key element in the integrity of the ecological system and a key feature of the area’s scenic qualities and recreation

opportunities.

We are aware of existing perfected water rights and conditional

water rights. These rights upstream from the proposed wilderness

exceed the estimated average annual flow and even the observed

peak flow on this stream. We recommend that H.R. 2963 be

amended to require monitoring of Deep Creek flows, and to work

with the Colorado Water Conservation Board to protect the water

and flow-dependent values of the proposed Deep Creek Wilderness.

As you are aware, the Colorado Army National Guard is authorized, under a 1987 memorandum of understanding, to conduct aerial navigational training maneuvers over Deep Creek. These occur

primarily between Thanksgiving and Memorial Day and often include landing helicopters within the proposed Deep Creek Wilderness up to four times a week. We are always concerned with nonconforming uses. We really appreciated that section 5(d)(2)((B) specifically recognizes that the MOU could be modified, and we are

anxious to work closely with the Colorado delegation and the Colorado Army National Guard to identify needed changes.

We look forward to working with the Committee and the Bureau

of Land Management to develop a map with manageable boundaries for the Deep Creek Wilderness prior to markup of H.R. 2963.

We would like to work with the Committee and staff on other suggested edits.

7

And I want to thank the Congressman for his participation in the

dedication of the Spanish Peaks Wilderness. You were involved

from the very start.

[The prepared statement of Ms. Kimbell follows:]

Statement of Abigail Kimbell, Acting Associate Deputy Chief, National

Forest System, Forest Service, United States Department of Agriculture

Mr. Chairman and members of the Committee, thank you for the opportunity to

discuss the views of the department on H.R. 2963, the Deep Creek Wilderness Act.

I am Abigail Kimbell, Acting Associate Deputy Chief for the National Forest System, USDA–Forest Service. We appreciate the Committee’s interest in protecting

the unique resources in Deep Creek.

Deep Creek is located in the State of Colorado largely within the White River National Forest and on lands managed by the Bureau of Land Management. In 1995,

the Forest Service and the Bureau of Land Management issued a joint determination that Deep Creek was eligible for designation under the Wild and Scenic Rivers

Act. All the alternatives considered in the draft White River National Forest Plan

Revision recommend that this area be managed as a Wild River eligible for Wild

and Scenic River designation. These recommendations were developed after thorough public involvement and with widespread public support.

We acknowledge wilderness designation for Deep Creek as being consistent with

these recommendations that Deep Creek be managed as a Wild River eligible for

inclusion in the Wild and Scenic River System. Wilderness designation is also consistent with the current Deep Creek inventoried roadless area wilderness evaluation

that rated the area high in its opportunities for solitude, naturalness, and manageability as wilderness. We have some concerns, however, with specific provisions of

H.R. 2963 as it is presently drafted.

Deep Creek has long been recognized for outstanding features and special qualities that were created or exist because of riparian and water-related values. These

include high quality natural communities; scenic, natural, and pristine canyon landscapes; and recreational and geologic values associated with cave formations in the

canyon. Deep Creek is a perennial stream with flows that originate mainly from

snow in the upper elevations of its watershed. Its clear water, relatively high but

stable flows, and diverse channel morphology provide good to excellent aquatic habitat and riparian values. A statewide survey conducted in 1993 by the Colorado Natural Heritage Program identified Deep Creek as containing one of the State’s most

pristine, high quality occurrences of significant riparian communities, including

many rare plant species. Deep Creek provides excellent habitat for re-establishing

a population of native Colorado River cutthroat trout.

Clearly, the water that flows in Deep Creek is a key element in the integrity of

the ecological system and a key feature of the area’s scenic qualities and recreation

opportunities. We recommend that Section 2(b), Purpose, recognize water and flow

dependent resources as important resources to ‘‘conserve, protect, and enhance.’’

A brief analysis of the current water rights in the Deep Creek drainage shows

that none of these existing rights appear to be located in the proposed wilderness,

although there are water rights upstream and on streams tributary to Deep Creek

that affect or have the potential to affect flows in the proposed wilderness. Deep

Creek’s waterway is largely unmodified.

We are aware of existing perfected water rights and understand the status quo

of how water is withdrawn from this system. We are also aware of conditional water

rights. These rights, upstream from the proposed wilderness, total 390 cfs, and far

exceed the estimated average annual flow (50 85 cfs), the estimated high flows (100–

200 cfs), and even the observed peak flow (250 cfs) on this stream. Developing these

conditional rights would impact streamflow and the flow dependent resources that

contribute to the uniqueness and the value of Deep Creek. We recommend that HR

2963 be amended to require monitoring of Deep Creek flows and, where necessary,

to work with the Colorado Water Conservation Board to protect the water and flow

dependent values of the Deep Creek Wilderness.

In addition, we recommend that HR 2963 be amended so the Forest Service, working with the Colorado Water Conservation Board, has the opportunity to protect the

critically important water and flow dependent resource values of the proposed Deep

Creek Wilderness. We would be pleased to work with the Committee in revising the

section of HR 2963 concerning water.

As you are aware, The Colorado Army National Guard is authorized under a 1987

Memorandum of Understanding to conduct aerial navigational training maneuvers

over Deep Creek. These training exercises occur primarily between Thanksgiving

8

and Memorial Day and often include landing helicopters within the proposed Deep

Creek Wilderness up to four times a week. It is unclear whether Section 5(d)(2) of

H.R. 2963 allows these exercises to continue. We are concerned about allowing such

a non-conforming use to continue within a designated wilderness. In this regard, we

appreciate that Section 5(d)(2)(B) specifically recognizes that the MOU may be modified. If HR 2963 is enacted, we would work closely with the Colorado delegation and

the Colorado Army National Guard to identify needed changes.

The Wilderness Act of 1964 defines wilderness to be a place without permanent

improvements or human habitation. Forest Service policy is to provide facilities and

improvements only for the protection of the wilderness resource. In order to protect

the wilderness characteristics of Deep Creek, the department suggests that Section

5(i) be clarified to provide minimal interpretive facilities, such as information kiosks

or trailhead signs outside the wilderness boundary.

We look forward to working with the Committee and the Bureau of Land Management to develop a map with manageable boundaries for the Deep Creek Wilderness

prior to markup of HR 2963.

We would like to work with the Committee and staff on other suggested edits including recommendations that certain sections be modified or deleted to avoid redundancy or possible confusion resulting from multiple laws addressing the same

issue.

Summary

In closing, we appreciate the Committee’s interest in providing present and future

generations with the benefits of an enduring resource of wilderness. We look forward to working with the Committee and the Bureau of Land Management to address our concerns. Deep Creek is truly a unique and special place that meets the

criteria for wilderness and wild and scenic river preservation, and is deserving of

protection for all Americans.

This concludes my prepared statement. I would be happy to answer any questions

you or other members of the Committee may have.

[An attachment to Ms. Kimbell’s statement follows:]

9

10

Mr. MCINNIS. I am going to go ahead and begin with a couple

of questions and a couple of points I want to make.

As you know from the language that with the Army Air National

Guard, that it requires agreement by both sides for modification of

the agreement. It is my intent to preserve their right to utilize

that, but balance it out with the modification—the MOU so either

side has to get an approval of the other.

The other—and I am not aware of any damage or any kind of

negative impact on Deep Creek’s areas as a result of these helicopter training exercises. Are you, other than the fact that you may

not—other than the fact that the Forest Service doesn’t like that,

that they are a noncompliant use?

Ms. KIMBELL. The Wilderness Act generally precludes the landing of aircraft within wilderness areas.

Mr. MCINNIS. You have not had any indication of any damage as

a result of those helicopters?

Ms. KIMBELL. No, I have not.

Mr. MCINNIS. The other thing, then, I will move on to my colleagues up here. We are talking about these water rights. Are you

aware—I mean, are the water rights of the Colorado Water Conservation Board—do they have water rights up there? Have you

looked at that?

Ms. KIMBELL. Yes, I have.

Mr. MCINNIS. I believe that they have some in-stream water

rights in there as well.

Ms. KIMBELL. Yes, sir.

Mr. MCINNIS. That currently exist.

Ms. KIMBELL. The CWBC has existing flows designated.

Mr. MCINNIS. My point is, I just want to make sure that other

people that read this testimony are aware that we have taken conscientious efforts in the past toward the preservation of that area

in regards to the water, but we have just got to be very careful as

to not endanger any water rights for the people of Colorado.

With that I will go ahead and yield to Mr. Udall if he has any

questions.

Mr. UDALL OF COLORADO. Thank you, Mr. Chairman. I do have

a couple of questions here.

I think the Chairman discussed aircraft use in the wilderness

area. Some of the lands covered by the bill are on forestlands, of

course, managed by the Department of Agriculture, and part of the

lands, as I understand it, are managed by the Bureau of Land

Management in the Secretary of Interior’s portfolio. Is that the case

as you understand it?

Ms. KIMBELL. That is correct.

Mr. UDALL OF COLORADO. Would each agency continue to manage their portion after the enactment of the bill?

Ms. KIMBELL. As there is nothing in the bill to preclude that, yes.

Mr. UDALL OF COLORADO. That is the starting point if the bill

were to become law in regards to the management regime?

Ms. KIMBELL. Yes.

Mr. UDALL OF COLORADO. Do you see any problem with that from

your perspective? Do we have examples of where that has worked

effectively?

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Ms. KIMBELL. Actually we do have examples where that works

very effectively. And, in fact, two agencies conducted a wild and

scenic river study on Deep Creek several years ago and came up

with a joint management plan for Deep Creek with the joint recommendation.

Mr. UDALL OF COLORADO. My colleague—and I don’t want to

steal her thunder, but she was asking me a question about nonconforming uses in wilderness areas, and if we were in this situation

to allow a so-called nonconforming use, we may want to characterize it in other terms. Does that, in your opinion, then open the

door for those kinds of uses to be opened and extended to other existing wilderness areas?

Ms. KIMBELL. That is at Congress’ discretion. And the bill as it

is written right now addresses specifically the Colorado Army National Guard, and it doesn’t address any other nonconforming uses

as we read the bill.

Mr. MCINNIS. Mr. Udall, I may add that what it does is just the

opposite, in my opinion, and, in fact, allows areas that come into

wilderness, if you think that community up there would be supportive of this as a wilderness area if they found out that we were

going to shut out these helicopters under current circumstances—

it is the same thing with the Colorado Canyons last year. We had

several different uses. We had mountain bikes. We had horseback.

We had river rafters. And under the perfect theory, these are all

nonconforming uses for the natural state of that, but because as we

were able to bring those in as managed uses, we were able to put

it into the conservation area. So I think, in fact, allowing this to

happen is what allows us to get this.

I can tell you this. If we—at least as long as I am Chairman, if

we tell these helicopters to get out of there today, Deep Creek

would not become a wilderness area.

Mr. UDALL OF COLORADO. Section 5 of the bill says that the only

uses to be permitted in the wilderness area will be ones that the

relevant agency, either the Forest Service, or the BLM as we discussed earlier, determines will further the purposes for which the

Wilderness Act is established.

Doesn’t that Act already specify which uses are permitted in wilderness areas? And would this part of the bill allow either agency

to allow some uses that otherwise would be prohibited under the

Wilderness Act?

If not, what would be the effect of this provision? I apologize for

asking you three questions that quickly.

Ms. KIMBELL. The bill references the Wilderness Act specifically,

and the Wilderness Act allows for some uses and doesn’t allow for

other uses, and unless specifically specified in the bill, the Wilderness Act would prevail. Those uses that are permitted under the

Wilderness Act would be uses that would be considered by the

managing agencies.

Mr. UDALL OF COLORADO. So unless the bill specifically says so,

the Wilderness Act would then determine the activities in these

areas?

Ms. KIMBELL. Yes. The Wilderness Act would help guide the

agency in developing the management plans.

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Mr. UDALL OF COLORADO. Section 5(h) deals with non-Federal

land holdings. Are there any non-Federal land holdings within the

boundaries of the proposed wilderness area?

Ms. KIMBELL. Not within National Forest lands, no.

Mr. UDALL OF COLORADO. Do you know by chance about the

BLM lands, if there—.

Ms. KIMBELL. I don’t know. That the—the maps that were provided didn’t permit us to ascertain that.

Mr. UDALL OF COLORADO. Okay. Thank you for your testimony.

Mr. Chairman, I yield back my remaining time.

Mr. MCINNIS. Ms. McCollum.

Ms. MCCOLLUM. Thank you, Mr. Chair. My question wasn’t—to

Mr. Udall was to understand a little better the history of the definition of the word ′′wilderness′′ here, because definitions truly have

a lot of power. And so my concern is not that we continue to allow

the Guard possibly to use this as training exercises, Mr. Chair.

That is not the dispute that I have. The dispute is using the term

′′wilderness,′′ calling this a Wilderness Act and including that in,

and what does that do 5 or 6 years from now as there is more pressure on some of our more traditional use of the term ′′wilderness′′

as we use it in Minnesota to say, you know, the Wilderness Act allows this to happen in this State and this to happen in that State.

And so there is no reason why we shouldn’t be opening up with the

pressures for the wilderness to be inclusive in Minnesota to allow

these activities.

So that is where my question comes, Mr. Chair. So I am just

kind of wondering if there isn’t maybe a more appropriate title for

the use of land. I was trying to kind of figure that out off the

record, but I will do it on the record. If you can be help me with

that, I would appreciate it.

Ms. KIMBELL. Each wilderness area is designated only with congressional action, and there is specific enabling legislation. It is—

even the Boundary Waters Canoe Area in Northern Minnesota allows motorized uses. Some do; some do not. But it has to be specified in the language in the legislation.

Ms. MCCOLLUM. And, Mr. Chair, maybe I could ask you—Mr.

Udall or Ms. Kimbell or someone from staff can help me out later.

I would—I am kind of curious then to how many wilderness areas

have helicopters in them, or, you know, we have two portages up

north, and they aren’t working, so nobody is really using the motors in them anyway.

Because I think I want to understand the consequences of enabling language in certain statutes and the potential for that language to be referenced in lands. I will use the Boundary Waters

just for an example. People would really like to helicopter in or

something like that 20 or 30 years from now and say, well, Congress approves.

Mr. Chair, maybe you can help me. I am not opposed to the helicopters being there. I just want to make sure that we don’t set a

precedent that you and I didn’t intend.

Mr. MCINNIS. Well, the precedent that has been set, Ms. McCollum, is that when Congress originally put together, from a historical basis, the opportunity to put wilderness areas, they allowed

13

that flexibility built within the statute for people to customize

these areas.

For example, in Alaska, you can’t move in Alaska without an aircraft. So you will find out in their national parks and things like

that, they have exemptions for aircraft to land in places that we

would never think of allowing in your parks, because you can access your parks. In Alaska you can’t do it, there aren’t roads up

there, et cetera, et cetera.

It is the same thing here. Wilderness, we actually have much

more areas—if you are interested in wilderness accumulation, you

are actually having much more accumulation of wilderness because

there is some flexibility to put in these different uses when it is

originally drafted by Congress. Once this is locked into Congress,

then it is almost impossible to change in the future. So that flexibility was intentionally put in by Congress, and the only precedent

it sets is, hey, when you put together wilderness, you better realize

that it is a permanent lock, albeit Congress could overturn it, but

in reality they won’t.

So you better get everything right when you first put it together

and take into consideration everybody’s needs up there, which is

exactly what we have done and come up with this compromise bill

on Deep Creek.

We better move on. We are going to get hit with votes before we

have our other witnesses.

Mr. UDALL OF COLORADO. Would the gentlelady yield?

Just for the record, Mr. Chairman, in the special provisions section of the Wilderness Act it says that, section D, the following special provisions are hereby made. Within wilderness areas designated by this act, the use of aircraft or motorboats where these

uses have already become established may be permitted to continue subject to such restrictions as the Secretary of Agriculture

deems desirable. In addition, such measures may be taken as may

be necessary in the control of fire, insects and diseases, subject to

such conditions as the Secretary deems desirable.

That is an important part of the Wilderness Act, and I think we

need to continue our discussion as to what that really means not

only when it comes to this legislation, but other wilderness legislation pending.

Mr. MCINNIS. Mr. Udall, what that applies to is if you have a

wilderness area currently in existence right now that does haven’t

an exemption, for example firefighting, then that is what that applies to.

All we need here are 218 votes to customize a wilderness bill.

That is exactly what we are doing with Deep Creek, for example.

That is exactly what we did with the Colorado Conservation Area.

There is no prohibition in statute that says, hey, as a Congress you

can’t create a wilderness area, that says you allow portage or whatever you call it up in Minnesota, or you allow planes to land in

Alaska or whatever, et cetera.

Mr. UDALL OF COLORADO. I think the point I am trying to make

is there is some consistency between what you are proposing and

at least what the initial clauses and conditions in the Wilderness

Act stipulated.

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Mr. MCINNIS. Thank you, Abigail. We appreciate it very much.

We need to move on so we can get our second panel.

Welcome, Mr. Inslee, the Ranking Member. We are going to move

on. Your remarks were introduced, put into the record.

Mr. MCINNIS. Our second panel, Mr. John Martin. John, thank

you very much. I know that you have put a lot of time and effort

into this, lots of effort. I appreciate that.

Chris Treese. I don’t know anybody in Colorado that is relied

more upon, at least in western Colorado, for water expertise than

your organization and you, frankly.

Steve, I wish you would have been at the Spanish Peaks dedication. Your name was used in very complimentary fashion.

And, Abigail, I want you to note that your compliments on the

Spanish Peaks, that gentleman right there, Steve Smith, had a lot

to do with it over time. And I want to just publicly commend you

as you were recognized appropriately at the Spanish Peaks dedication.

And Tom, I continually am appreciative of the efforts you make

to make this work. I know that the Army National Guard, the helicopter landings, the water issues all of that. So all four of you have

been involved in a very intricate fashion in putting this bill together, and I appreciate that courtesy.

So why don’t we go ahead, Commissioner Martin. Why don’t you

begin, and you may proceed.

STATEMENT OF JOHN MARTIN, GARFIELD COUNTY

COMMISSIONER, STATE OF COLORADO

Mr. MARTIN. Thank you, Mr. Chairman. I appreciate it. I also am

humbled by the opportunity to participate in today’s hearing, especially in light of current events facing our world.

My subject of discussion is an area in Garfield and Eagle Counties of Colorado. Deep Creek Canyon is truly a wilderness in its

purest form spanning over 8,000 acres. For Garfield County with

a population of 43,000, a land border of 2,957 square miles, or approximately 1,892,000 plus acres, which, I might add, 1,134,000

acres are federally controlled land, and also with the history of peoples’ conservative approach to land use, the consideration of another 8,000 acres of federally controlled wilderness may sound almost unbelievable, but as Chair of the Board of County Commissioners of Garfield County and the spokesperson for the towns and

cities of Garfield County, I ask you, hear our unified voice. Deep

Creek is a canyon unmarred by man or machine.

Deep Creek is just that, a nearly inaccessible canyon of unbelievable beauty, and a canyon, when viewed from its rims, which rings

true as wilderness. The few roads on the fringe allow access by

cavers, four-wheel-drive vehicles, hikers, horse riders, photographers, naturalists and snowmobile riders. The canyon is heavily

wooded with very rugged carved limestone walls, and only the

bravest hikers find themselves in the lower trail.

Garfield and Eagle County citizens are not the only people aware

of Deep Creek Canyon’s wilderness qualities. The public lands

Committee for the Colorado Counties, Inc., a nonprofit statewide

organization of Colorado county commissioners with membership in

61 of the statewide 64 counties of Colorado support the Deep Creek

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Wilderness, as does the Colorado River Conservation Commission,

the local offices of BLM, the U.S. Forest Service, Division of Wildlife, our State representatives, and our State senator.

Also, I might add that a large landowner adjoining Deep Creek

also supports the wilderness designation.

The approach that Garfield and Eagle County took to present

this request for its proper title for Deep Creek was to take a single

area, review the qualities and the size, seek the input of our citizens to see if there was public interest, to allow each local government to ask questions and supply the needed support before moving forward. The next step was to involve the users and the landowners, gaining their input and support. Finally, we consulted with

the resource managers, the protectors, the users, and gathered

their support to present to our local Representative, Congressman

Scott McInnis, to allow him and his staff to review the findings and

have him help us seek the proper title for Deep Creek Canyon.

Now we ask you to support this proper title and proclaim Deep

Creek Canyon as a wilderness. Thank you.

Mr. MCINNIS. Thank you, Commissioner.

[The prepared statement of Mr. Martin follows:]

Statement of John Martin, Commissioner, Garfield County Board of County

Commissioners, Glenwood Springs, Colorado

I appreciate the opportunity to participate in this hearing today, especially in

light of the current events facing our world.

My subject of discussion is an area in Garfield and Eagle Counties, of Colorado.

The area, Deep Creek Canyon, is a true wilderness in the purest form, spanning

over 8000 acres.

For Garfield County, with a population of 43,000, a land border of 2,957 square

miles or approximately 1,892,209 acres, of which 1,134,373 acres are Federally controlled lands, as well as our people’s conservative approach to land use, the consideration of another 8000 acres of Federally controlled Wilderness may sound unbelievable. But, as chair for the Board of the County Commissioners and the spokesperson for the towns and cities of Garfield County, I ask that you hear our unified

voice. Deep Creek is a canyon unmarred by man or machine. Deep Creek is just

that, a nearly inaccessible canyon of unbelievable beauty, and a canyon, when

viewed from its rims, which rings true as Wilderness. The few roads on the fringes

allow access by cavers, four-wheel drive vehicles, hikers, horse riders, photographers, naturalists, and snowmobile riders. The canyon is heavily wooded with

very rugged carved limestone walls. Only the bravest of hikers try to follow the canyons lower trail.

Garfield and Eagle County citizens are not the only people aware of Deep Creek

Canyon wilderness qualities. The Public Lands committee for Colorado Counties

inc., a nonprofit statewide organization of Colorado’s county commissioners, with

membership in 61 of the 64 counties of Colorado, supports Deep Creek Wilderness,

as does the Colorado River Commission, local offices for the Bureau of Land Management, Forest Service, and Division of Wildlife, our local State Representatives

and State Senator. The large landowner adjoining Deep Creek also supports the

Wilderness designation.

The approach Garfield and Eagle Counties took to present this request for its

proper title for Deep Creek, was to take a single area, review the qualities and size,

seek input from our citizens to see if there was public interest, allow each local government to ask questions, and supply the needed support before moving forward.

The next step was to involve users and landowners, gaining their input and support.

Finally, we consulted the resource managers, protectors, and users, gathering their

support to present to our local representative, Congressman Scott McInnis, allowing

him and his staff, to review the findings and have him help us seek the proper title

for Deep Creek Canyon. Now, we ask you to support this proper title and proclaim

Deep Creek Canyon as a Wilderness.

Thank you.

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Mr. MCINNIS. We are going to go ahead and go through the

whole panel, then open it up to the Committee for questions.

Mr. Treese, again, thank you for coming. You may proceed.

STATEMENT OF CHRISTOPHER J. TREESE, EXTERNAL

AFFAIRS, COLORADO RIVER WATER CONSERVATION DISTRICT

Mr. TREESE. Thank you, Mr. Chairman. I am here today to express support for H.R. 2963 on behalf of the Colorado River Water

Conservation District as a water policy body. I am here principally

to speak to the water-related aspects of the bill.

However, I want to begin by expressing the board’s appreciation

for your approach to a single area wilderness legislation that allows each of the particular values and concerns associated with the

wilderness area to be addressed within the legislation.

We also appreciate, and the board wanted me explicitly to recognize, your prerequisite for local support before considering designation legislation for new wilderness areas. Deep Creek Wilderness

proposed is not a headwaters wilderness area, as has been the typical practice of wilderness areas within Colorado. There are, as has

been mentioned, both conditional and perfected, that is, both existing and planned, water development facilities upstream from the

proposed wilderness area. As such, careful and explicit language in

this bill is necessary to protect the property values associated with

those historical water rights.

H.R. 2963 has that language. We are very pleased with the approach that you have taken, Mr. Chairman, in that language. However, we also recognize that the legislative process is a dynamic

process, and there have, in fact, historically been several approaches to resolving water-related issues. And we pledge our continued support to you as well as the rest of the delegation and the

Congress to continue to work on the water-related legislative language so that both water users, present and future, and the wilderness values can be protected.

Mr. MCINNIS. Thank you, Mr. Treese. I appreciate it.

[The prepared statement of Mr. Treese follows:]

Statement of Christopher J. Treese, External Affairs, Colorado River Water

Conservation District, Glenwood Springs, Colorado

I want to thank Chairman McInnis for this opportunity to share the Colorado

River Water Conservation District’s views regarding H.R. 2963, the Deep Creek Wilderness Act.

The Colorado River Water Conservation District (‘‘River District’’) is the principal

policy body for the Colorado River within Colorado. We are a political subdivision

of the State of Colorado responsible for the protection and development of the Colorado River basin’s water resources to which the State of Colorado is entitled under

the 1922 and 1948 Colorado River compacts. The River District includes all or part

of 15 counties in west-central and northwest Colorado, including the entirety of both

Garfield and Eagle Counties in which the proposed Deep Creek wilderness area resides.

Colorado River water is a scarce natural resource subject to greater demands than

supplies. As such, western water concerns have been a major stumbling block for

past wilderness legislation. Historically, the protection of water resources in wilderness legislation has taken a variety of forms, but water concerns have consistently,

and often significantly, delayed or completely thwarted passage of previous wilderness legislation. This has been the history of Colorado wilderness legislation despite

the fact that the vast majority of Colorado’s wilderness areas, to date, have been

headwater areas and therefore not subject to the range of water-related concerns

that are associated with downstream wilderness areas.

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Simply put, downstream wilderness designations not only preclude water development within the designated area, but conspicuously threaten all upstream water development potential unless precise water language is included in the enacting legislation.

The River District commends Chairman McInnis for his approach to address potential wilderness areas individually. The fact is that each prospective wilderness

area has unique qualities which may qualify it for wilderness designation; concurrently, each area also has unique concerns associated with wilderness designation.

We concur with the chairman that these area-specific concerns are best resolved

through discrete area wilderness legislation. We note the relatively swift passage of

the chairman’s Spanish Peaks, Colorado Canyons and Gunnison Gorge wilderness

bills as evidence of the success of this legislative formula. We also commend Congressman Udall’s employment of this approach to protect the James Peak wilderness area.Further, the River District expresses its appreciation to the chairman for

his steadfast prerequisite that any proposed wilderness area have demonstrated

local support prior to wilderness legislation. While we recognize that federal wilderness areas are a national treasure, the fact is that wilderness areas have disproportionate impacts, both beneficial and adverse, to the local economy and to those

neighboring the proposed areas.

Our specific concerns with the proposed Deep Creek wilderness include protection

of water resources and water rights. In the Deep Creek area, there are both perfected and conditional water rights upstream of the proposed wilderness area. That

means that both existing water uses and planned future uses that are not yet developed lie upstream of the proposed wilderness boundaries. In fact, the River District

is the owner of a couple of those conditional rights, which we hold in trust for

present and future water users in Western Colorado. Wilderness designation immediately downstream of these existing property rights, without carefully crafted language to protect them, would have a chilling effect on their development potential

and economic value. This is especially true of a proposed area such as Deep Creek

whose wilderness values are predominantly defined by the water resource itself.

H.R. 2963, as introduced, includes wilderness boundaries that have been carefully

crafted to exclude current water development features such as existing dams, diversions, and canals. Nevertheless, a wilderness area immediately downstream of existing or planned water developments presents clear operational and political challenges unless those rights are specifically recognized in the enabling legislation. The

current language of H.R. 2963 does this.

The River District has been working with the chairman’s office on water-related

solutions for a proposed Deep Creek wilderness designation for some time. We

strongly support the water language of H.R. 2963 as introduced. However, we also

understand the dynamic nature of the legislative process and pledge to continue our

efforts to resolve water resource and water rights concerns to the mutual satisfaction of both Western Colorado water users and the proposed Deep Creek wilderness

area.

Mr. MCINNIS. Mr. Smith, you may proceed.

STATEMENT OF STEVEN W. SMITH, ASSOCIATE SOUTHWEST

REPRESENTATIVE, SIERRA CLUB, REPRESENTING THE COLORADO WILDERNESS NETWORK

Mr. SMITH. Thank you, Mr. Chairman and members of the Subcommittee, for this opportunity to discuss a well-deserved wilderness protection for the Deep Creek area near my home in Glenwood

Springs, Colorado. My name is Steve Smith. I am associate Southwest regional representative for the Sierra Club, speaking today on

behalf of the entire organization and the other members of the Colorado Wilderness Network, a coalition of 300 environmental

groups, businesses and local governments who support the statewide citizens wilderness proposal, which includes Deep Creek. A

list of those supporters is included in the Committee members’ materials. I have also provided letters from an adjacent landowner,

two professional Deep Creek outfitters, and three local governments expressing their support for a larger Deep Creek Wilderness.

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We appreciate your introduction of this legislation, Mr. Chairman, that will protect the remarkable beauty, the distinctive geography and the remote ruggedness of this true wilderness. Your personal familiarity with the area and your appreciation of that beauty are key to helping Congress understand the significance of the

place and how overwhelmingly suitable it is for addition to the National Wilderness Preservation System. Meanwhile your ability and

willingness to consider diverse points of view and then help bring

them together into mutually agreeable legislation has helped secure wilderness designations at Blackridge Canyon, Spanish Peaks,

and soon, we hope, at James Peak, all in Colorado.

We need your assistance again, Mr. Chairman, to rework

H.R. 2963 into legislation that will preserve the striking beauty of

the Deep Creek area while protecting the interests of those who

live and work nearby, and without diminishing the foundation protections provided by the Wilderness Act itself.

I respectfully submit that this bill in its current form does not

quite accomplish all three of those things. Several portions of

H.R. 2963 seem to restate existing law or to confirm existing administrative documents. Some of the bill’s provisions on wilderness

management, rights of way, motor vehicle use, grazing, and water

and other topics are in some cases a little confusing, at least to my

limited understanding, and in others may actually conflict with the

specifics of existing law or contracts. These portions should either

use more precise references to that existing documentation or be

removed from the bill in favor of relying on those sources directly.

Today I would like to highlight three specific concerns about the

bills provisions: wilderness size, water, and aircraft overflights.

Deep Creek’s gorge and cascading streams are the most immediately apparent highlights and attractions of the proposed wilderness, and preservation of that gorge is certainly paramount. There

are other lands, however, and streams that cross them that both

help protect these salient features and complete a true composite

of wild landscape around them. The uplands north and south of the

central canyon rim as well as the rolling meadows and ledges farther upstream to the west where there is no obvious rim also need

to be included in this wilderness and can be without compromising

nearby nonwilderness uses.

In any case, we believe that the size of Deep Creek Wilderness

described in the bill is inadequate to properly protect the area, or,

in the upper regions, to provide a clear and manageable boundary.

We have several suggestions for obviously expanding and, we

think, improving that detail.

Water and water rights are also sensitive topics in Colorado, no

more so than in the context of wilderness designation. In Deep

Creek we believe there is a version of water rights language that

can be negotiated in order to assure reliable protection for the lifeblood of this new wilderness, while assuring continued beneficial

use of water. We believe specifically that the express denial of

water rights protection for the wilderness as included in the current version of H.R. 2963 does not accomplish that dual goal, and

we will oppose such a denial.

Other details of the bill’s water rights provisions also need refinement. We would be very pleased to work with you, with the

19

river district and with others to reach agreement on changes to

those.

Our coalition understands the need to maintain a well-equipped

and well-trained citizen military, and we support reasonable use of

public lands for military exercises. At the same time, a wilderness

designation must recognize and preserve this area as a place without the structures or motorized activities of any human endeavor,

except in the case of utmost and short-term emergency, as provided

in the Wilderness Act, in agency regulations on wilderness management, and in the National Guard memorandum itself.

Specifically, military and other airborne activities over Deep

Creek should indeed stay over Deep Creek and must not include

landings inside the designated wilderness or motorized travel

across the land inside the wilderness. We believe that other narrow

steep canyons nearby, areas also included in the memorandum of

understanding, can provide similarly challenging training opportunities.

Again, it is a pleasure to be engaged in this effort to secure the

recognition and protection of the outstanding natural wonder that

is Deep Creek. My enthusiasm for this effort is enhanced by the

fact that our own Congressman and Chairman of this key Subcommittee has decided to help with this effort. In these days of fear

and necessary courage in the face of some abominable human behavior, the solace of wilderness, even the knowledge that it is out

there preserved, is a key part of our personal and national wellbeing.

Places like Deep Creek are the essentials of America the Beautiful, a land that justifiably increases our pride and our collective

will to make the world a better, safer place.

Thank you again, Mr. Chairman and members of the Subcommittee, for joining in this good work in behalf of American wilderness.

Mr. MCINNIS. Thank you, Mr. Smith.

[The prepared statement of Mr. Smith follows:]

Statement of Steven W. Smith, Associate Regional Representative for the

Sierra Club, on behalf of the Colorado Wilderness Network

Thank you, Mr. Chairman and members of the Subcommittee, for this opportunity

to discuss well-deserved wilderness protection for the Deep Creek area near my

home in Glenwood Springs, Colorado.

My name is Steve Smith, and I am Associate Southwest Regional Representative

for the Sierra Club in Colorado. I am speaking today on behalf of my organization

and the other members of the Colorado Wilderness Network, a coalition of 300 environmental groups, businesses, and local governments who support additional wilderness designations, including Deep Creek, in our state.

The Steering Committee for the Colorado Wilderness Network is composed of representatives from Colorado Environmental Coalition, Colorado Mountain Club, Sierra Club, The Wilderness Society, and Western Colorado Congress.

We appreciate the Chairman’s introduction of legislation that would protect the

remarkable beauty, distinctive geography, and remote ruggedness of this true wilderness. His personal familiarity with the area and his appreciation for its beauty

are key to helping other Members of Congress understand the significance of the

place and how overwhelmingly suitable it is for addition to the National Wilderness

Preservation System.

I have enjoyed a career of twenty-six years in environmental policy and advocacy,

including twelve years of service as Senior Congressional Assistant to Congressman

David Skaggs of Colorado. During that time, I enjoyed working with Congressman

McInnis and his staff on field research, citizen negotiations, and legislative drafting

that resulted in wilderness designations for many spectacular parts of Colorado. The

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most recent success that came from that time was celebrated just over two weeks

ago when the Chairman dedicated the new Spanish Peaks Wilderness in southern

Colorado.

We are now anticipating House action on another measure that will protect much

of the James Peak roadless area, along the Continental Divide, as wilderness, another measure that the Chairman helped make possible.

I mention these efforts and these particular areas because they represent many

months of discussions, negotiations, and compromise, facilitated by Congressman

McInnis, in efforts to provide the best possible protection for important wildlands

while attending to legitimate interests of nearby citizens and users of public lands.

I believe that this same spirit of negotiation and patient legislative creativity can

produce good wilderness legislation for Deep Creek. I offer for the subcommittee’s

consideration several points that need particular attention in such negotiations.

They include wilderness area size and boundaries, protection for natural water flows

in wilderness, clarification of motorized use near the area, and a collection of technical clarifications.

The first question of concern to us is the size and scope of a wilderness designation for Deep Creek. Over the past nearly three decades of citizen research and recommendations, our organizations have found that including the largest expanse and

variety of landscape possible in a wilderness area is important to preserving the

more obvious natural features of the area.

In the case of Deep Creek, the deep gorge and cascading stream are the most immediately apparent highlights and attractions of the proposed wilderness, and preservation of that gorge certainly is paramount, as the Chairman has often pointed

out. There are other lands, and streams that cross them, that both help protect

those salient features and complete a truly comprehensive example of wild lands

protection.

The uplands north and south of the canyon rim through the area’s midsection, as

well as rolling meadows and ledges farther upstream to the west also need to be

included in this wilderness because they are integral to its ecological health and,

in the case of the portions upstream of the gorge, do not include an obvious canyon

rim to serve as their boundaries.

The Colorado Wilderness Network has proposed a wilderness designation for Deep

Creek comprising 22,000 acres. This proposal includes the variety of landscape I

have mentioned, and it is bounded by easy to locate natural and human-built features. By bounding the area by Coffee Pot Road to the south and a national forest

access road to the north, the wilderness is readily defined on the ground.

Our proposal specifically leaves out of wilderness roads that are actively used for

motorized travel, including the boundary roads and several spur routes that lead to

canyon overlooks and camping sites. It also leaves out of wilderness, and so open

to ready access, existing water diversion structures and routes that lead to them.

In recent weeks, our staff and volunteers have met with owners of private property adjoining the Deep Creek area, with motorized recreationalists, and with

backcountry outfitters permitted to work in and near the area, as well as biologists

who understand the dynamics of the greater Deep Creek ecosystem. As a result, we

have learned of several opportunities to modify our proposed boundaries in order to

accommodate uses incompatible with wilderness while still designating key parts of

the uplands and upstream meadows. We have, in turn, secured support from these

owners and users for our modified proposal.

In any case, we believe that the size of a Deep Creek wilderness described in H.R.

2963 is inadequate to properly protect the area, even for a so-called rim-to-rim designation. The area needs to be larger to properly protect the wilderness resource and

to afford functional boundaries.

We will be very pleased to work with the Chairman and other members of the

subcommittee, and their staffs, to review the details of these field investigations and

conversations in order to craft a wilderness boundary mutually acceptable to all involved.

Water and water rights are always sensitive topics in Colorado, no more so than

in the context of wilderness designations. In Deep Creek, we again encounter the

sensitive and contentious discussion of water. As in the instance of boundaries, we

believe that there is a version of water rights language that can be negotiated for

this legislation in order to assure reliable protection for the lifeblood of this new wilderness while assuring continued beneficial use of water.

We believe, specifically, that the express denial of water rights protection for the

wilderness, as included in Section 5(j)(3)(A) of H.R. 2963 as introduced, does not accomplish that dual goal, and we will oppose such a denial.

Some other particulars of the water language included in the bill warrant discussion. In two locations, the ‘‘Findings’’ section of the bill refers to water rights or faVerDate 11-MAY-2000 16:34 Mar 05, 2003 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6621 J:\DOCS\75726.SF HRESOUR2 PsN: HRESOUR2
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cilities that are ‘‘adjacent’’ to the proposed wilderness. That is not a term familiar

to us, as we tend to look at points of diversion and their attendant facilities as either within, upstream of, or downstream of an area. Language protecting continued

exercise of legitimate water rights on Deep Creek or its tributaries is certainly appropriate in wilderness legislation. References to water rights or facilities that are

in separate watersheds are not appropriate or are, at best, confusing.

As another portion of the bill’s ‘‘Findings’’ notes, it is possible to provide for reasonable development of existing conditional water rights outside the wilderness

while protecting the wilderness. That view should be more specifically represented

in the implementation sections of the legislation.

In Section 5(j)(4)(B), although essentially a restatement of provisions already included in the Wilderness Act, is, in our view, a helpful assurance that new structures will not be built in the wilderness.

We appreciate the Chairman’s decision to consider this area individually for wilderness designation, thus allowing legislation to be crafted in response to the physical and human use characteristics unique to the area. This custom crafting is particularly important on the question of water in proposed mid-stream wilderness

areas. However, the use in any one bill of inadequate or arbitrary water language, such

as the express denial of wilderness water protection, makes more difficult negotiation of good water provisions in other bills.

Colorado is blessed with a remarkable brain trust of water experts, legal,

hydrological, and environmental. Engaging the skills and wisdom available in discussion of Deep Creek can provide a creative, and more effective, approach to water

protection and management there. We enjoy, for example, a good working relationship with the staff and board members of the Colorado River Water Conservation

District. We will be very pleased, with your permission and encouragement, to engage in further discussions with them in pursuit of comprehensive and protective

water language that we might jointly present to you and the subcommittee.

The bill includes in Section 5(c)(2) reference to training exercises by the Colorado

Army (Air) National Guard, a contingent of which is based at the Eagle County Airport, near Deep Creek, and to a memorandum of understanding between the National Guard and the U.S. Forest Service for activities over and near Deep Creek.

Our coalition understands the need to maintain a well-equipped and well-trained

citizen military, and we support reasonable use of public lands for military exercises. Since a wilderness designation, in itself, does not restrict overflights of any

type, including military flights, this provision appears to be unnecessary and could

be left out of the legislation.

At the same time, a wilderness designation must recognize, and preserve, this

area as a place without the structures or the motorized activities of any human endeavor, except in the case of utmost and short term emergency, as already provided

in the Wilderness Act and in agency regulations on wilderness management.

Specifically, military or other airborne activities over the Deep Creek area must

include no landings inside the designated wilderness or other motorized travel

across the land itself. We believe that other narrow, steep canyons nearby, areas

also included in the memorandum of understanding, can provide similarly challenging training opportunities.

Several other points, each essentially a question of legislative drafting or clarification include the bill’s references to management under the Federal Land Planning

and Management Act, reference to ability to ‘‘enhance’’ wilderness values, and reference to provision of new rights-of-way across wilderness. In general, we will seek

clarification that none of these provisions diminishes the basic protections found in

the Wilderness Act.

Again, it a pleasure to be engaged in this effort to secure the recognition and protection of the outstanding natural wonder that is Deep Creek. Our enthusiasm for

this effort is enhanced by the fact that our own Congressman, Chairman of this key

subcommittee, has decided to lead this effort.

In these days of fear and necessary courage in the face of some abominable

human behavior, the solace of wilderness, even the knowledge that it is out there,

preserved, is a key part of our personal and national well being. Places like Deep

Creek are the essentials of America the Beautiful, a land that justifiably increases

our pride and our collective will to make the world a better, safer place.

As naturalist and guide Sigurd Olsen said some fifty years ago, ‘‘Wilderness to

the people of America is a spiritual necessity, an antidote to the high pressure of

modern life, a means of regaining serenity an equilibrium.’’

Perhaps more than at any other time, that observation is relevant and true.

Thank you again, Mr. Chairman and members of the subcommittee, for joining

in this good work on behalf of American wilderness.

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[Attachments to Mr. Smith’s statement follow:]

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Mr. MCINNIS. Commissioner, I want you to know that 10 years

ago or so, at the urging of some of the county commissioners then,

I took my first overflight to talk about wilderness on Deep Creek

and so on. So the commissioners of Eagle County have been very

consistent in their attention to this in now well over a decade for

attention on that, and you have certainly carried it forward. I appreciate it.

You may proceed.

STATEMENT OF TOM C. STONE, EAGLE COUNTY

COMMISSIONER, STATE OF COLORADO

Mr. STONE. Thank you, Mr. Chairman. And thank you, members

of the Committee. In the interests of time, and recognizing that

brevity is appreciated, I am not going to share with you my—or

speak my written testimony. I have submitted it. I would like to

sum it up, though, and I really would like to focus on one very,

very, very key issue, and that is the Army National Guard.

I spoke with the professional, Colonel Joel Best, right before I

came out here and asking Colonel Best what his concerns were.

And he reiterated to me, as I am sure that he has shared with you,

Mr. Chairman, the necessity of having—to be able to continue operations as they have operated in the past in Deep Creek Canyon.

The high-altitude training site is a world-renowned site. I have

seen pilots in there from Norway, Sweden, from all sorts of countries throughout the world, plus, of course, the United States, coming there for high-altitude training that they do not get anywhere

else in the world. This is a truly unique facility.

In recognition of that, within the last 6 months, Eagle County

just signed an 80-year lease for a dollar a year for a substantial

portion of the Eagle County Regional Airport with the Army National Guard. That should give you an indication of our commitment. Not only do they provide training, but they provide search

and rescue efforts for the entire western slope of Colorado. And

Colonel Best said to me very simply, Commissioner Stone, if we

don’t have those training opportunities that the canyon provides for

us, we are just not going to be able to provide the service that we

have provided in the past. There are other areas that they do use,

but other areas do not provide them with the training opportunities

that they have there. And Colonel Best did go on to tell me that

he was sure that some of the pilots that he has trained personally

will be in operations over in Afghanistan.

So I will end my testimony to give you some time to ask some

questions. Thank you.

Mr. MCINNIS. Thank you, Mr. Commissioner.

[The prepared statement of Mr. Stone follows:]

Statement of Tom C. Stone, Eagle County Commissioner, Eagle, Colorado

Thank you Mr. Chairman and members of this Committee for the opportunity to

speak in support of designation of certain lands as the Deep Creek Wilderness Area.

Almost 86% of my County is publicly owned lands. As a Commissioner in Eagle

County, I take my job as a responsible steward of these lands very seriously. Our

County is home to world famous Vail ski area. As a result of our many recreational

opportunities and incredible mountain vistas, we are also one of the fastest growing

counties in the nation. As a board of County Commissioners, we constantly strive

to strike a balance between responsible use of our lands and protection where warranted. Following the concept of multiple use of the Federal lands in Eagle County,

33

we believe that the wise use of some property should be geared more towards active

recreation. Other lands warrant a more passive use and the ultimate designation

of Wilderness. Properly defined and regulated, Deep Creek affords a unique opportunity for almost all stakeholders to agree on this most protective establishment of

Wilderness.

The Eagle County Board of Commissioners and the Garfield County Board of

Commissioners both passed a resolutions unanimously that read in part, ‘‘Deep

Creek has met the definition of wilderness by its scenic and ruggedly remote limestone canyon, which is up to 3,000 feet deep. It contains more than 40 caves, including Colorado’s largest known cave. Deep Creek provides a pristine stream, lined

with high-quality blue spruce, Douglas fir, and Red–Osier dogwood habitat, and is

home for deer, elk, mountain lion, bald eagle, peregrine falcon, northern goshawk,

Townsend’s big-eared bat, round-tail chub, numerous songbirds and raptors’’. The

Resolution goes on to say, ‘‘the proposed wilderness designation which is being supported herein includes the area contained rim to rim of Deep Creek totaling approximately 8,450 acres of which 2000 acres are in Eagle County and 6,450 acres are

in Garfield County’’. The area that my board supports is one that is truly rugged

and has very limited signs of the influence of man.

One of the most notable features of this proposed designation is something other

than the property itself. The feature that I refer to is the process that Congressman

McInnis used to craft this Bill. Congressman McInnis solicited a broad range of local

input from County commissioners, private property owners, the Colorado River

Water Conservation District, environmental groups and other stakeholders before

submitting this Bill. Too many times we have seen just the opposite where someone

will offer a Bill first and ask questions later. Congressman McInnis should be commended on his commitment to local input, which has resulted in a thoughtful bill

that combines the goals of local officials with environmental initiatives. This truly

collaborative process has resulted in a bill that is ready for speedy passage with little or no change necessary. Trusting in the Forest Service’s RARE II survey, which

indicates a Roadless Area of 11,060 acres, and adjusting to protect private property

and water rights, the boundaries that Congressman McInnis has proposed are appropriate. Permitted use by the Colorado Army National Guard, adherence to Colorado Water Law and the requirement of no Buffer Zones are all essential features

of this Bill. Without these requirements our board could not support this legislation.

Congressman McInnis has met the needs and all requirements necessary to satisfy

us that all proper safeguards have been met.

I urge this Committee to pass this legislation as presented. Overly extended discussion will only serve to endanger these lands from ever gaining the designation

that they deserve. Thank you for your time and public service to the great needs

of this great nation.

[An attachment to Mr. Stone’s statement follows:]

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Mr. MCINNIS. In light of that, we will go ahead and go straight

to questions from the panel.

Mr. Inslee.

Mr. INSLEE. Thank you. I just want to open a question to anyone

who can answer it. As far as water rights, could you all give us

some description of what you perceive to be the existing right to

use water and how that would be affected by this bill, and in real

terms. In other words, is there an acrefeet that could be used for

irrigation now, but would not under this bill? Is there a flow regimen required by some, you know, legal challenge or otherwise?

Just give us a real-world feeling of what would change under this

bill and what we should be thinking about.

Mr. TREESE. Thank you, Mr. Inslee. Chris Treese.

There are both existing water rights upstream and adjacent to

this wilderness area that rely on Deep Creek for their water supply. There are also planned water facilities that have what is called

in Colorado a conditional water right, which essentially serves as

a placeholder in our priority system.

There is also a third element of water rights to understand as

a baseline in answer to your question; that is, an in-stream flow

right held by the State, held by the Water Conservation Board, as

mentioned by Ms. Kimbell, that protects the in-stream or free-flowing values of Deep Creek.

The concern, to answer your question, about wilderness designation if it were not to have explicit recognition of the existing water

rights, both perfected and conditional, is that you end up with a—

at least, at the very least, a very difficult political situation to try

and permit those future water facilities upstream of a wilderness

area. By their nature they have some depletive effect upon the

stream itself, and some will argue that any depletive impact will

irreparably harm the wilderness values for which the wilderness

was recognized, again, unless the wilderness language, the enabling legislation, does not explicitly recognize that, and the Congress basically have said these can be accommodated and still have

those wilderness values.

Mr. INSLEE. Does some entity today have an in-stream flow

water right? If so, who is that?

Mr. TREESE. Yes, sir. It is the State of Colorado. The State of

Colorado within the State is the only entity that is legally allowed

to hold a water right for free-flowing water purposes. They do have

a water right. It is, I believe, for 14 cubic feet per second in the

summertime and 8 cubic feet per second in the wintertime.

I would add that I have not heard anybody suggest in any of the

discussions that I have had that that is not adequate for the wilderness or—for the Deep Creek stream system, the environmental

system.

Mr. INSLEE. Well, even without a designation in the bill, those

water rights would be protected, would they not, even without a

specific statement that those water rights are not abrogated or expanded or contracted?

I am trying to figure out, why do we have to address that issue?

Aren’t those water rights, to extent they exist, vested, legally recognized?

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Mr. TREESE. I think if you are only referring to the existing

water rights that are—that have already been developed, both the

in-stream flow right and the existing water rights for which facilities are already developed, you are probably correct. However, the

need to change the operation of the facility forever into the future

cannot be determined at a given point in time. The principal concern is for the conditional water rights, that is, for the water rights

for facilities that are planned to be developed, but not yet developed, and a protection for those water rights and a recognition that

these water rights, once developed, will have a depletive impact on

Deep Creek.

Mr. UDALL OF COLORADO. Will the gentleman yield?

Mr. INSLEE. Sure.

Mr. UDALL OF COLORADO. In Ms. Kimbell’s testimony, Mr.

Treese, she said that the conditional water rights upstream from

the proposed wilderness far exceed the estimated average flow, the

estimated high flows, and even the observed peak flow on this

stream. Do you agree with her estimates?

Mr. TREESE. I am adding up quickly in my head. I am not sure

that I do. I believe that they may—the Forest Service testimony

and statement may include conditional water rights by a company

called Rocky Mountain Power that were only relatively recently

abandoned and are no longer on the table so—the State table of

water rights. That removed between 110 and 190 cubic feet per second from that cumulative total.

Mr. UDALL OF COLORADO. So is it or isn’t it accurate to say that

development of these conditional water rights would mean or could

mean that part of Deep Creek in the wilderness area could be completely dewatered, at least part of the time?

Mr. TREESE. I don’t know that to be true or false. I am sorry. I

would be happy to follow up with you and look at both the stream

data. There is not a gauging station, to my knowledge, on Deep

Creek. So we would have to do some synthetic data trying to figure

out exactly what the—using the existing stream gauges where they

exist to come up with a reasonable estimate of how much water

Deep Creek contributes to the Colorado River System, and then

looking at these conditional water rights.

Mr. UDALL OF COLORADO. I would appreciate if you could provide

that. I am not looking for an outcome that is predetermined. I

think it would be very good data. I thank the gentleman for yielding, and I used all of his time.

Mr. INSLEE. Can I make just one comment, and go over my red

light, if I could? It strikes me, and I can be educated on this, but

it strikes me that we shouldn’t and will not abrogate existing water

rights by passage of wilderness designations. On the other hand,

I don’t think we want to get into situations that would tie future

public decisionmaking of upstream flows to the extent that they

can be considered by whatever public entities have to make it.

For instance, let’s assume there is 10,000 acrefeet of water rights

that are not owned by anyone in upstream flows, they are open for

future development, open for future consideration. And some public

entity, and I don’t know Colorado water law a lot, but could be involved in the decisionmaking of whether development takes place

upstream or not.

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I guess I don’t want to tie the hands of public officials to say you

can’t consider it, that there is a wilderness area downstream, in a

decision of whether or not to grant rights that may or may not

exist. And I just think that is something we should think about in

how we structure this language.

Thank you, Mr. Chair.

Mr. SMITH. Mr. Chairman, may I offer a couple of remarks being

that Congressman Inslee offered it as a general question? Just two

quick supplements to what Chris ably outlined on the condition of

water up there.

On the existing water rights, both conditional and perfected, is

that those are of senior nature and ought to be maintained. And

our boundaries and our proposal leave those out and available for

continued operation. We just want to be sure that the Federal managers of the new wilderness also have a water right at the table

in Colorado water rights negotiations to compare and negotiate

with the other folks who hold the water rights.

The second quick point I would make is that the Colorado Water

Conservation Board, the designated holder typically of in-stream

flow rights in Colorado, has as a definition for its in-stream flow

rights one that is completely different than the purposes of wilderness. It is a different set of principles that basically provide sufficient flow for fish life, fish to live. It is more complicated than that,

obviously, but it does not take in the complex range of water purposes and water benefits in a wilderness area. And so we believe

that water protection for the wilderness needs to go well beyond

what the State already has in place. Thanks very much.

Mr. MCINNIS. Let me point out a couple of things. First of all,

remember that this legislation is unique.

Let me step back. The Colorado water law is unique and very

complicated. This is unique, this particular bill, in that we are talking downstream and not headwaters; and of course, the fear is, any

time you put a wilderness downstream, the Federal Government,

which they did through—Judge Kane, in about 1986, I think it was

about 1986, said that the Government, even though it was never

mentioned, had water rights which impacted everybody that was

utilizing water, especially anybody that was junior, or in a case like

this, anybody that was upstream.

You could very well into the future have a Federal judge just like

Judge Kane say, Hey, the Federal Government has water rights

that are downstream; and therefore not just the quantity but the

quality of the water, the temperature, et cetera, et cetera, and they

could have a huge impact on every water right above it.

That is the big fear in Colorado, and I have made it very clear

as a condition of any type of wilderness, at least that I have any

leverage over, has to meet two elements. One, it has got to have

local support. I think that is reflected here; and two, it has got to

have a water right sign-off, because when you are dealing with the

wilderness areas that are not the headwaters, you are dealing with

a very complicated subject and that is why the river district—and

the river districts have had a number of meetings on this, lots of

debate on this, and their sign-off was absolutely critical.

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So if we proceed to try and negotiate something further and we

lose the sign-off of the Colorado River district, we lose the bill. It

is that simple, and that is how critical the water issue is.

Mr. SMITH. Mr. Chairman, I would be pleased to note that we

have been visiting with members of the river district board and

with their staff in an attempt to come up with a composite of wilderness water rights provisions that will be acceptable to them and

still protect the characteristics of wilderness for which this designation is intended; and we are very pleased to continue working with

the district in those kinds of negotiations so, as you say, they sign

off on something that works for both purposes.

Mr. MCINNIS. That is right, Mr. Smith. That sign-off is critical

for the life of this legislation, so to speak.

Do we have any further questions by any members of the panel?

Mr. UDALL OF COLORADO. Mr. Chairman, thank you, and I would

add my support to the remarks you made about the challenge we

face when we have downstream wilderness areas. And there is a

whole series of court cases that have tried to deal with this in a

way that treats everybody fairly, and we continue to have to respond to the new situations that arise.

Chris, just to pursue this a little further, I think it is important

to have all of this on the record. Isn’t it accurate that the United

States already has a water right for national forest purposes, so

what we are talking about is whether there should be some new

right in Deep Creek?

Mr. TREESE. I am not aware of a Forest Service water right in

Deep Creek.

Mr. UDALL OF COLORADO. I think there are for the national forests in general. Is that your understanding?

Mr. TREESE. That has been litigated on a forest-by-forest basis

is my understanding, and there have—they have found a limited

appropriative reserve right for the forest, not a reserve right for an

in-stream flow or a free flowing flow of the river, a water right.

Mr. UDALL OF COLORADO. So, in effect, we are still discussing

here today whether there ought to be a new right although there

is already this existing position that the Forest Service holds?

Mr. TREESE. I believe that is what we are discussing.

Mr. UDALL OF COLORADO. What is the old saying? Whiskey is for

drinking and water is for fighting over.

I think in the great State of Washington they don’t have that

problem. So we should invite my colleague, Mr. Inslee, to Colorado

and have him spend some additional time. Although he did have

a great backpacking trip in Congressman McInnis’s district last

summer up in the Maroon Bells Wilderness, so he has firsthand experience.

I am looking at my list of questions here. Back to Ms. Kimbell,

she suggested the bill should be amended so the Forest Service,

working with the Water Conservation Board, has the opportunity

to protect the critically important water and flow-dependent resource values of the proposed Deep Creek Wilderness. What would

be your reaction to that suggestion, Mr. Treese?

Mr. TREESE. Thank you. I was pleased to hear the Forest Service

make that comment. I think that it is critical that whatever solution is crafted recognizes State water law and the ability of the

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State to administer whatever water solution is crafted. It is the

State that is responsible for the administration of water, and if it

is not a water right and recognized by the State, it is not an

administratable water right.

Mr. UDALL OF COLORADO. Mr. Smith, I take it you might have

a suggestion of another approach.

Mr. SMITH. We would be—we have several other approaches, I

think, that would work in the context of this one suggestion that

the Forest Service has made.

We remain concerned that the Water Conservation Board has in

place procedures and definitions and standards for the amount of

an in-stream flow right that are based on purposes different from

the purposes of the Wilderness Act. The Board is not currently capable, under its own guidelines, to hold a wilderness in-stream flow

right. If that board were to develop such standards that would protect the wider range of aquatic and riparian needs of such an instream flow right, that might be a possibility, but there is work to

be done in order to make the approach work.

Mr. UDALL OF COLORADO. I hope I didn’t wade into that subject

so far I got over my head.

But Commissioner Martin, I want to welcome you and Commissioner Stone. Congressman McInnis and I have had some success

in the James Creek area, and we worked over a number of

months—and in my case, years—trying to reach consensus. I know

in Garfield County you had initially opposed any new wilderness,

and I note now, at least in this case, you have changed your minds

or have seen an opportunity.

Would you just talk briefly about what changed your views on

this and whether that might hold—my goal is some understanding

as we look at all of the proposed wilderness in the State of Colorado, because we have some outstanding issues we have got to resolve in that regard.

Mr. MARTIN. All right. I think you are going on the assumption

that was put out by the press, saying that we were opposed, et

cetera. In fact, the press failed to report the other half of the story,

and that was that we opposed grouping all wilderness together in

one bill, and we said we would not support that type of a bill.

We did say we would support each individual area to be considered and to do that, we have done, taking it through the public

process, through our own public hearings, each community being

involved, asking for support, and then the users as well as the

managers. That is the approach we took.

We do not oppose wilderness. In fact, we are very strong. I think

Garfield County has just about the most wilderness in the area.

Mr. UDALL OF COLORADO. When you say ′′most wilderness,′′ potential wilderness? You already have designated wilderness?

Mr. MARTIN. Flat Tops Wilderness Area. We are also looking at

an expansion of the Flat Tops Area, as well as Hack Lake and several other areas, the large BLM Demaree Canyon, 64,000 acres,

which is on the west end of Garfield County.

Mr. UDALL OF COLORADO. I know my time has expired, but so

the press, you believe, misreported your position—and that has

never happened to Congressman McInnis or myself—so at times it

is difficult to make sure that the story is complete. So if that is the

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case, I look forward to working with you in this Committee and

with your able Representative, Mr. McInnis, in the future.

Thank you for taking the time to come to Washington.

Mr. MARTIN. Thank you. Also thank you for putting me in the

same group of being represented in the newspaper.

Mr. MCINNIS. Congressman Udall, I point out that both Commissioner Stone and Commissioner Martin have been very frank about

the fact that this has got to go through a local vetting process and

that they do oppose, as I think most of us in these types of positions on the West Slope do oppose, a package that you can’t customize, just throwing it all into one bill; and that is where this opposition was reported by the media. In fact, both of these individuals have been commendable in the process that they have vetted

it through.

In fact, the way they have taken it through their constituent

process is one that I think should be used as an example in other

counties throughout the State, and I just want to point that out to

reemphasize their dedication to the public lands, because both of

them represent counties that have a tremendous amount of public

lands, and every community in both of their districts is completely

surrounded by public lands.

So whether it is payment in—PILT funds, or public access or

multiple use, these two are really very approachable, number one,

and very educated on the issue.

Mr. UDALL OF COLORADO. Will the gentleman yield?

Mr. MCINNIS. Sure.

Mr. UDALL OF COLORADO. I appreciate those sentiments and I

know we have debate before us about which lands deserve wilderness protection and which lands ought to revert to uses of the past;

and I hope we can continue to work together, because we have

those other challenges.

You mentioned PILT and timber receipts in some of the counties

in Colorado. We have health care issues that face your district that

we would like to spend time addressing, as well as getting after

the, I think, opportunity, but the danger that faces us with the condition of our forests and forest health challenge we face. We want

to try to reduce the potential for these hazardous wildfires that

have become more prevalent in the West.

So I look forward to working with you and Chairman McInnis on

all of these issues.

Mr. MCINNIS. I think it is important to keep in mind that legislation, for example, as Deep Creek, this does not come about as a result of the 1988 proposal. I flew over 10 years ago when they were

trying to get me interested in putting the wilderness—the Eagle

County commissioners and Garfield have had discussions on this

for many years. So a lot of these pieces of property, it is going to

take that type of vetting process; and if they try and shortcut that

vetting process, I think it is incumbent upon the commissioners to

say, no, not until our constituents have had an opportunity to really vet it out, as I said earlier.

So no further questions. I want to thank the panel. Everyone on

the panel came a long distance, and especially in these circumstances, where travel is pretty taxing. I appreciate the jobs you

are doing back there. Thank you for coming.

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Does the panel have any further business? Seeing no further

business, the Committee is adjourned.

[Whereupon, at 6:11 p.m., the Subcommittee was adjourned.]

[A letter submitted for the record by Mr. McInnis follows:]

Æ