U.S. Army Corps of Engineers Turns Dry Desert Rivulet into “Navigable Waters”

In the middle of constructing the connector road to the new St. George Airport in the summer of 2010, the U.S. Army Corps of Engineers asserted jurisdiction over the area and ruled that Section 404 permits (pertaining to excavation or fill materials “in wetlands, streams, rivers, and other U.S. waters”) previously issued to the state for the road work near a dry desert rivulet were issued in error. The ruling by the Army Corps ground construction of the airport access road to an abrupt halt costing the state, Washington County, the City of St. George, and local businesses untold millions of dollars.

Local officials protested the action in writing also addressing the “rumor” that the Corps intended to designate the Virgin River, which on a good year has barely enough water in the summertime for inner tubers to float, as a “Navigable Waterway” under the Clean Water Act (CWA). Major General Grisoli of the Corps responded that “the Corps is not evaluating the Virgin River as a navigable river.” 
 

The State and the Utah Department of Transportation appealed the jurisdictional determination and even the South Pacific Division of the Corps remanded the jurisdictional determination back to the Sacramento Office for their further review. The Sacramento Office then eventually ruled in favor of UDOT’s appeal regarding its 404 permits but, incredibly, ruled that the Virgin River was “Navigable-in-fact” and that any future appeal or determination of jurisdiction would be based upon the Virgin River as the nearest navigable body of water – instead of Lake Mead, as had previously been the case, (and was the basis of the successful UDOT appeal). 
 

The adverse potential of this ruling is huge! The Supreme Court decision in the Rapanos case stated that for a piece of land to be federally jurisdictional under the CWA, a significant nexus must exist between the land/water in question and “a navigable body of water.” By the Army Corps of Engineers determining that a nexus need only be established with the only-occasionally-inner-tube “navigable” Virgin River, a much smaller threshold by orders-of-magnitude, they can now classify all of Washington County as “jurisdictional” and effectively subject to their federal (read preservationist and obstructionist) “zoning and planning” veto authority.

Experience indicates that greater federal control over land access and land use will only increase uncertainty, paperwork, costs and delays; decrease access and beneficial use of public and private lands; and further stifle job and economic growth in Washington County.

If you are concerned about such expansive federal intrusion to local jurisdiction over land access and land use, join me as we organize the Land Use Policy Group of ALC.

Alan Gardner
Utah, Washington County Commissioner

When Will We Develop the 1828 Resolve to Secure Our Public Lands?

The “western states” in 1828 (IN, IL, MO, AR, LA, FL, etc.) banded together and relentlessly sent petition after petition, resolution after resolution, delegation after delegation to Washington complaining that (i) Congress was not disposing of their public lands as promised at statehood, (ii) as a result these “western states” could not generate sufficient revenues to fund education, (iii) they couldn’t grow their economies, and (iv) they were denied access to their abundant minerals and natural resources.

Because they simply refused to take “NO” for an answer regarding the duty of the federal government to transfer title to their public lands, by 1854, Congress passed the Graduated Price Act paving the way for the transfer of nearly all of the public lands in their states. You can learn more about the resolve that led to this 1828 success story in securing the transfer of the state’s public lands by clicking here, here, and here.

The success story of these 1828 “western states” banding together to secure the rights and benefits promised them at statehood is both instructive and inspiring for the circumstance of today’s western states where the federal government still maintains an iron-fisted control over their public lands.

 

Utah, for example, is perpetually last in the nation in per pupil funding for education. In fact, it would take more than $2 billion a year for Utah to close this education-funding gap. Moreover, Utah relies on funds from a fiscally unsustainable federal government for more than $5 billion a year of its $13 billion budget.

Utah, and the other western states, have an abundance of resources to provide for education equality and to secure our economic self-reliance (click here and here) if only the federal government would honor the same promise it made and kept with all states east of Colorado.  

Why would today’s western states allow this fiscally reckless federal government to retain control over our public lands and our future where the promise is the same for the disposal of our public lands as it was with the 1828 “western states?” Could it be that all we lack is a general knowledge of our public lands history and our rights, and the 1828 Resolve to not take “NO” for an answer? Learn more about our public lands history and rights at www.AreWeNotAState.com.

Utah has taken the first step this year in refusing to take “NO” for an answer by passing the Transfer of Public Lands Act which sets a deadline of December 31, 2012 for the federal government to work with the state toward the orderly transfer of all public lands to the state to be managed by a Utah Public Lands Council. The Public Lands Council is charged with maintaining the existing rights and expectations that have accrued in the lands over the 116 years that the federal government has failed to honor its promise to dispose of the public lands. The bill also protects Utah’s national parks and other important natural heritage sites while paving the way for the development of Utah’s abundant natural resources to close Utah’s education funding gap and to secure the future economic self-reliance of the state.

Why shouldn’t today’s western states have the same rights and benefits to their public lands that the 1828 “western states” relentlessly secured for their state and their future?

Written by Rep. Ken Ivory (sponsor of the Utah Transfer of Public Lands Act)

Utah House of Representatives

“Green Standards” Will Usher in New Dark Age

“What, if any, energy sources does this country have left that are deemed environmentally fit for today’s strict “green” standards?  How has America found itself in a place where its critical energy sources are in jeopardy? It is as if today’s radical environmentalists would like to see America as it was in the 20^th Century — B.C.

With allies to this extreme environmental movement strategically placed throughout this administration, in the White House and in radical “green” groups throughout the nation, it is no wonder Americans are being regulated back to a time before humans existed.  The sad part is this reckless agenda is moving full-steam ahead, taking jobs, livelihoods and America’s prosperity along with it.” EPA and radical environmentalists work to take America back to the 20th Century—B.C., Rebekah Rast, May 10, 2012 http://netrightdaily.com/2012/05/epa-and-radical-environmentalists-work-to-take-america-back-to-the-20th-century-b-c/

When is Enough, ENOUGH?

How about when the federal government and its insatiable desire for control threaten your home, life, and property? Would you stand by and

Mangled water pipes above Tombstone

allow ANYONE to do this to you? How about if they were doing it to your neighbor? Because after all if they can do it to your neighbor they can do it to you.

This is, in fact, exactly what is happening between the United States Forest Service (USFS) and the historic town of Tombstone, Arizona. Tombstone is crying out for help. Americans everywhere must unite to answer their call. If we fail to do so, we risk losing an icon of the west and, perhaps even worse, giving the federal government even more power and control over our property and our lives. 

The town of Tombstone is desperately trying to repair access to various water sources and infrastructure that were severely damaged by landslides in the mountains above their town. As a result of mismanagement and failed federal policies, the forests in the mountains above Tombstone were ravaged by fire. The fire destroyed critical ground cover that stabilized rocks and soil. With the ground cover removed followed by heavy monsoon rains, the mountain rocks and soil gave way and demolished much of the infrastructure supplying Tombstone with desperately needed water. When the town attempted to replace mangled pipes and access its springs they were met with threats, red tape, and even armed resistance.

Despite using its perfectly serviceable access road with trucks and tractors in the past, the USFS has now restricted Tombstone to "horses and hand tools"

A New Showdown in Tombstone

to remove 10-15 feet of debris to restore its water lines that pre-date the federal wilderness area where Tombstone's mountain springs are located. The USFS has even blocked Tombstone employees from using a wheelbarrow saying it is "mechanized equipment." Under such oppressive regulations, Tombstone needs thousands of shovels (with "non-mechanized" human operators) on the mountain to help repair its water lines.

Now, at the beginning of the scorching and arid Arizona summer, the town of Tombstone is a ticking time bomb with only minutes of water available on hand to fight a fire in a town made of wood, in the middle of a desert, in the middle of a drought. Ironically, Tombstone is a national historic site and MUST be preserved, while a federal bureaucracy is denying town officials from taking action to preserve the town. We can't help but wonder, "Ironic or moronic?" To read more details about the insanity click here.

The American Lands Council (ALC) has recently organized to take the offensive against just such atrocities. If you've heard enough and are as fighting mad as we are, here are some things you can do to help:

1.  to ALC
2. Send a shovel and $5 (or more) to the Tombstone Shovel Brigade. Click Here to do that. 
3. Join us in Tombstone on June 8-9, 2012 for the Tombstone Shovel Brigade Click here for more Info
4.  If We The People don't take a united stand against such federal intrusions to our right and control of our property (especially water) in Tombstone, it will be our own faults when federal control continues to increase over our lives and livelihoods. Money and manpower will make the difference. Please help!