Udall-Heinrich Bill Would Emasculate the Wild and Scenic Rivers Act

Legislation introduced by New Mexico’s two Democratic US senators would severely undermine the integrity of the National Wild and Scenic Rivers System (NWSRS). Yes, S.3670 has some good provisions, but it also has some bad and downright ugly provisions. It includes bovine-exalting language and protects federal grazing permits, even while grazing of livestock on federal public lands endangers nine imperiled species found in the river system the bill seeks to include in the NWSRS.

Figure 1. Gila trout. Listed as “threatened wherever found” under the Endangered Species Act. Although Senators Udall and Heinrich say that their wild and scenic rivers bill “will permanently protect the unique habitat” [emphasis in original], as introduced their legislation will not. Source: Center for Biological Diversity.

The Good

The bill would include approximately 446 miles of free-flowing streams in the Gila River watershed in the National Wild and Scenic Rivers System (Map 1.) According to the bill’s drafters, Senators Tom Udall (D-NM) and Martin Heinrich (D-NM), “The Greater Gila watershed, which includes the San Francisco River and other main tributaries, comprises the largest remaining network of naturally flowing river segments in the Southwestern United States.”

I’m confident that all the stream segments are worthy of federal protection. Since I’ve never been there, I have nothing to add.

Map 1. New Mexico stream segments proposed for inclusion in the National Wild and Scenic Rivers System (click for a larger version and the individual stream-segment maps). Source: Senator Tom Udall.

The Bad

Most of the proposed wild and scenic river mileage is already protected within the Gila Wilderness, the nation’s first wilderness, established in 1924 (thank you, Aldo Leopold!). In other words, the vast majority of the mileage proposed by the senators for inclusion in the National Wild and Scenic Rivers System is already within the National Wilderness Preservation System. The incremental conservation benefit of this bill would thus range from nil to minimal, the latter only under extreme and unprecedented circumstances (see below).

It is a hugely ineffective use of political capital for the conservation community to back a wild and scenic rivers bill in which most of the proposed additions to the National Wild and Scenic Rivers System are already within the National Wilderness Preservation System.

It is a hugely effective use of political capital for United States senators to add streams to the National Wild and Scenic Rivers System that are already in the National Wilderness Preservation System. A politician can “save” rivers already saved.

Figure 2. Loach minnow. Listed as “endangered wherever found” under the Endangered Species Act. Although Senators Udall and Heinrich say that their wild and scenic rivers bill “will permanently protect the unique habitat” [emphasis in original], as introduced their legislation will not. Source: Center for Biological Diversity.

Wild and scenic river designation has only one advantage over wilderness designation—that wild and scenic rivers are protected from an obscure provision of the Wilderness Act of 1964 that allows a president to override the Wilderness Act and allow water projects and powerlines:

Within wilderness areas in the national forests designated by this chapter, (1) the President may, within a specific area and in accordance with such regulations as he may deem desirable, authorize prospecting for water resources, the establishment and maintenance of reservoirs, water-conservation works, power projects, transmission lines, and other facilities needed in the public interest, including the road construction and maintenance essential to development and use thereof, upon his determination that such use or uses in the specific area will better serve the interests of the United States and the people thereof than will its denial; (16 USC 1133)

However, no president—not even the current one—has done so. No regulations have ever been written to provide for the destruction of wilderness for these purposes. 

Of course, some of the proposed wild and scenic river segments are not within wilderness areas and are worth expending the political capital for, both by the conservation community and the senators—if both want to leave real legacies.

Figure 3. Spikedace. Listed as “endangered wherever found” under the Endangered Species Act. Although Senators Udall and Heinrich say that their wild and scenic rivers bill “will permanently protect the unique habitat” [emphasis in original], as introduced their legislation will not. Source: Center for Biological Diversity.

The Ugly

The New Mexico senators (and in fairness, all senators in some circumstances and most people in most circumstances) want it both ways. They want to take political credit for “saving” the streams. At the same time, they do not want to take political heat for changing the status quo that favors special interests whose activities are harmful to the outstandingly remarkable values their legislation purports to protect.

There is a mismatch between the soaring rhetoric of the bill’s sponsors and—as it pertains to the grazing of livestock on federal public lands—the plummeting language of the bill.

Figure 4. Gila chub. Listed as “endangered wherever found” under the Endangered Species Act. Although Senators Udall and Heinrich say that their wild and scenic rivers bill “will permanently protect the unique habitat” [emphasis in original], as introduced their legislation will not. Source: Center for Biological Diversity.

What the Senators Say About Livestock Grazing

In their press release, the senators say:

In their legislation, Senators Udall and Heinrich are similarly tailoring management of the proposed river segments to the needs of our region in such a way as protect the traditional river values and uses while also permanently protecting the free-flowing nature of these river segments.

In their summary of their legislation, the senators say, among many other things:

To make this clear, we included a number of provisions providing guidance to managing agencies about what designation would and would not do.

This Act will protect continued uses such as grazing and irrigating.

This Act will permanently protect the extraordinary scenic values found along many of the river segments.

This Act will permanently protect the exceptional geological values and their remarkable display of 30 million years of change.

This Act will permanently protect the unique habitat of native species assemblages, including habitat of the Gila trout, loach minnow, spikedace, Gila chub, narrow-headed gartersnake, northern Mexican gartersnake, Chiricahua leopard frog, yellow-billed cuckoo, and southwestern willow-flycatcher. [emphasis in original]

Keep these four fish, two snake, one frog, and two bird species in mind. We’ll come back to the “Gila Nine” imperiled species later.

Figure 5. Narrow-headed garter snake. Listed as “threatened wherever found” under the Endangered Species Act. Although Senators Udall and Heinrich say that their wild and scenic rivers bill “will permanently protect the unique habitat” [emphasis in original], as introduced their legislation will not. Source: Center for Biological Diversity.

What the Senators’ Legislation Says About Livestock Grazing 

The legislation speaks directly to grazing on federal public lands within the proposed wild and scenic rivers. In the findings of the bill,

(C) the Greater Gila River watershed and other rivers in the Gila National Forest—

(i) are a national treasure deserving of inclusion in the National Wild and Scenic Rivers System;

(ii) possess numerous outstandingly remarkable values; and 

(iii) contain segments that merit the high level of protection provided by the Wild and Scenic Rivers Act (16 U.S.C. 1271 et seq.) to maintain the benefits provided by the Greater Gila River watershed and other rivers in the Gila National Forest for future generations of people in the State of New Mexico to enjoy; and

(D) wild and scenic river designations—…

(iv) do not—…

(III) affect grazing operations [emphasis added]

Often found at the beginning of legislation, findings are generally explicitly binding, but later statutory language is the law of the land.

(1) EFFECT ON RIGHTS.—Nothing in this section or an amendment made by this section affects any existing rights of, privilege of, or contract held by any person that affects Federal land or any private land within the same watershed as a covered segment without the consent of the person, including—

(A) grazing permits or leases;…

(E) cattle management infrastructure [emphasis added]

“Cattle management infrastructure” is not defined in the bill but would reasonably include fences, water diversions, roads to haul cattle, and the like.

In other words, the Wild and Scenic Rivers Act doesn’t apply to private grazing permits on federal public lands within these proposed wild and scenic rivers if the legislation as introduced is enacted into law.

Which do you believe: the words that come out of their mouths or the words in the legislative language? In the end, legislative language in the United States Code—not press releases—is the only thing that counts.

In their summary of the legislation, the senators say:

This Act will not affect grazing permits, including for currently vacant allotments on federal land. [emphasis in original]

Vacant allotments have no ongoing grazing by livestock and are therefore ecological strongholds. Under federal grazing law, these allotments could be opened to livestock grazing despite any harm to these new wild and scenic rivers.

Figure 6. Mexican garter snake. Listed as “threatened wherever found” under the Endangered Species Act. Although Senators Udall and Heinrich say that their wild and scenic rivers bill “will permanently protect the unique habitat” [emphasis in original], as introduced their legislation will not. Source: Center for Biological Diversity.

In their Frequently Asked Questions, the senators say:

Does WSR designation affect grazing and related infrastructure? The senators are committed to ensuring the continuation of livestock grazing in designated areas where it occurs today, including on currently vacant allotments, as well as the maintenance, repair, and replacement of related range improvements. The senators’ bill language states this intent.

On federal land within the corridor, existing livestock grazing practices and related structures are generally not affected by designation. The Interagency Guidelines state that agricultural practices should be similar in nature and intensity to those present in the area at the time of designation (based on permitted numbers, not current stocking rates), and that grazing may be compatible with all river classifications (wild, scenic, or recreational). Grazing may occur in a river corridor provided it does not substantially detract from the values for which a segment was designated. Further, new facilities and improvements in a corridor may be permitted if necessary to support range activities, provided the area maintains its natural appearance overall. Further, the senators provided additional flexibility for new infrastructure projects in a number of segments by changing their classification to recreational. [emphasis added; citations omitted]

The Interagency Guidelines were issued by the four wild and scenic river agencies: the Forest Service, the National Park Service, the Fish and Wildlife Service, and the Bureau of Land Management. They semi-effectively serve as guidance to wild and scenic river managers in lieu of formal regulations.

Key here is the sentence: “Grazing may occur in a river corridor provided it does not substantially detract from the values for which a segment was designated.” It is an accurate representation of the Interagency Guidelines. Under the Wild and Scenic Rivers Act, if livestock grazing on federal public land does harm the outstandingly remarkable values for which the stream segment was added to the National Wild and Scenic Rivers System, such grazing must be modified to the point that it does not.

However, the senators’ legislative language would make this provision of the Wild and Scenic Rivers Act null and void insofar as it relates to these wild and scenic rivers. 

Figure 7. Chiricahua leopard frog. Listed as “threatened wherever found” under the Endangered Species Act. Although Senators Udall and Heinrich say that their wild and scenic rivers bill “will permanently protect the unique habitat” [emphasis in original], as introduced their legislation will not. Source: Center for Biological Diversity.

The Gila Nine: Species Imperiled by Livestock Grazing

All nine of the imperiled species that the New Mexico senators avow publicly—despite the actual legislative language—to “protect” using the Wild and Scenic Rivers Act are listed as threatened or endangered under the Endangered Species Act. The Center for Biological Diversity has championed the conservation of these and many other imperiled species. Here is what that organization says on its website about how each species is affected by livestock grazing:

Gila trout: “Mining, logging, and cattle-grazing activities altered habitat through increased erosion and sedimentation as well as by causing changes in water levels, increased water temperatures, and reduced bank cover.”

Loach minnow and spikedace (identical language): “While the U.S. Fish and Wildlife Service vacillated on securing protections for loach minnow and spikedace habitat, we successfully challenged livestock grazing in Arizona and New Mexico, helping ban cattle from streamside habitats on dozens of Southwest grazing allotments.”

Gila chub: “By the late 1800s, many southern Arizona watersheds were in poor condition due to livestock grazing, mining, hay and timber harvesting, and water diversion. Though the initial changes took place nearly a century ago, many of the fragile desert ecosystems haven't fully recovered, and some areas may never recover. The Gila chub has suffered in these degraded desert watersheds.”

Narrow-headed garter snake: “Livestock grazing has eliminated riparian vegetation across large stretches of the snake’s range through browsing, trampling and stream bank erosion. This can directly impact the garter snake, which depends on riparian vegetation for cover and basking sites. Removal of cover for basking could expose the snakes to predators, such as hawks. . . . Livestock grazing also causes sedimentation of waterways through bank erosion and riparian vegetation loss. Stream sedimentation reduces foraging visibility and buries rocky stream bottoms utilized by the snake. However, livestock-caused sedimentation has not been documented as a clear cause of decline for this species. Livestock grazing may also impact the garter snake by altering the composition and community structure of aquatic fauna. The aquatic invertebrate community may change because of altered stream channel characteristics, higher water temperatures induced by loss of riparian vegetation, sediment deposition or substrate size changes, or nutrient impoverishment or enrichment. This change in the food base of many aquatic vertebrates, particularly fish, may contribute to a change in the overall vertebrate community, and could have a negative impact on the garter snake.” [citations omitted]

Mexican garter snake: “Oases in the desert, Southwestern streams are among the most delicate ecosystems on the planet. In these shallow, ephemeral waters, species like the Mexican garter snake once carved out a precarious existence. But these highly adapted, rare animals are no match for pumping, livestock grazing, and flood control, which have all but dried up most desert rivers.”

Chiricahua leopard frog: “Chiricahua leopard frogs need permanent water for reproduction, but that’s increasingly hard to come by: Southwest riparian areas are often destroyed by livestock grazing, groundwater pumping, water diversion and dams. Some natural marshes, springs and wetlands are converted to cattle stock ponds.”

Yellow-billed cuckoo: “Today, with the loss of gallery riparian forests to dams, livestock grazing, water withdrawal and other factors, the cuckoo is found in a mere handful of locations in Arizona, California, Colorado, New Mexico, Nevada and Utah.”

Southwestern willow flycatcher: “One of the first imperiled animals the Center championed, the southwestern willow flycatcher has suffered more than a century of steady decline. Livestock grazing, dams, water withdrawal, and sprawl have robbed the sentinel-like songbird of more than 90 percent of its riparian habitat—and left it all the more vulnerable to other birds that prey on its eggs or use its nests to incubate their own eggs.”

Figure 8. Yellow-billed cuckoo. Listed as “threatened” under the Endangered Species Act. Although Senators Udall and Heinrich say that their wild and scenic rivers bill “will permanently protect the unique habitat” [emphasis in original], as introduced their legislation will not. Source: Center for Biological Diversity.

Senators, Heal Thy Rivers and Thy Reputations

New Mexico wild and scenic rivers should be full-fledged wild and scenic rivers, not wild-and-scenic-lite.

My father, Stewart Udall, helped to create the Wild and Scenic Rivers Act because he knew that preserving wild places was the right thing to do for our children and our economy.

—Senator Tom Udall

Senator, your dad was right. Leave his legacy intact and don’t tarnish yours.

Nearly 100 years ago, the spectacular landscapes and ecosystems shaped by these waters inspired the establishment of America’s first wilderness area. Wild and scenic designation will permanently protect the Gila’s free-flowing segments, attract more visitors to southwestern New Mexico, and grow our outdoor recreation industry. 

—Senator Martin Heinrich

Please strip out the bovine-exalting language and include a voluntary federal grazing permit retirement facilitation provision that would allow federal grazing permittees to voluntarily relinquish their grazing permits for fair and generous compensation, as Senator Heinrich has supported previously for New Mexico.

The Gila Nine are depending on you.

Figure 9. Southwestern willow flycatcher. Listed as “endangered wherever found” under the Endangered Species Act. Although Senators UdaCenter for Biological Diversityll and Heinrich say that their wild and scenic rivers bill “will permanently protect the unique habitat” [emphasis in original], as introduced their legislation will not. Source: Center for Biological Diversity.