From CPP: The struggle over protecting the Nolichucky River

By Jack Igelman, originally published by Carolina Public Press. Carolina Public Press is an independent, in-depth and investigative nonprofit news service for North Carolina.

Editor’s note: This article is the first in a two-part series examining tensions over whether the Nolichucky River in Mitchell and Yancey counties should receive federal Wild and Scenic Designation.

A multiyear effort to protect an iconic stretch of the Nolichucky River from the possibility of a future dam has hit a snag.

Despite widespread support, the proposal to add 7 miles of river, including a portion in Mitchell and Yancey counties, to the National Wild and Scenic Rivers System lacks consensus among local residents.

The Wild and Scenic Rivers Act, passed in 1968, protects rivers with remarkable characteristics, such as scenic or recreational value, and prevents the construction of dams or other projects that disrupt the free flow of these rivers.

According to Kevin Colburn, national stewardship director of American Whitewater, the law prevents changes that impact the river, while protecting local user values without limiting use.

“It’s a marquee river,” Colburn said. “My hope is to set aside a few of the last best rivers in the Southeast, and I feel like the Nolichucky is at the top of the list. It doesn’t get any better.

“Whitewater rivers have been severely impacted by dams, and there are few free-flowing rivers left as grand as the Nolichucky. It’s a special place.”

The remote river gorge one hour from Asheville is popular among hunters, hikers and anglers, as well as a whitewater paddling destination. The 115-mile river is one among a handful of major waterways in the Southeast whose flow is unrestricted.

While Congress creates the legislation to add each river to the National Wild and Scenic Rivers System, in practice, power is consolidated among local residents and a handful of elected officials who decide whether to lend their support.

Following several years of advocacy in January 2020, Colburn and others advocating for the river’s protection achieved a tough sell in Western North Carolina with county government support for federal land designation.

But just as soon as it was within their grasp, that support vanished.

In February 2020, the proposal became “toxic” due to an argument in opposition that Colburn says is false. He recently contacted local governments encouraging them to reconsider, but he’s worried that it may now be too late to act.

“The designation was positive, popular and a universally good thing,” Colburn said. “But the counties are the decision makers and ultimately decide on the future of this river.”

This is the Nolichucky

In 2017, Curtis English, a rafting company manager, started a petition to designate the Nolichucky River as Wild and Scenic. Still active, the petition has more than 21,000 signatures.

The petition states that the river has remarkable scenic, recreational, geological and ecological values and that designation will “invigorate local economies through increased tourism.”

Among the advocates was the Unicoi County, Tenn., economic development community that includes the commercial whitewater industry, which has a meaningful presence on the Tennessee side of the river.

According to a study conducted by Asheville-based Equinox Environmental, the Nolichucky could add nearly $5 million to the region’s outdoor recreation economy.

A citizens draft proposed designating 7.2 miles of the Nolichucky, 6 miles of which is within the state of North Carolina and forms the Yancey-Mitchell county line.

The proposed area stretches from Poplar, an unincorporated community in Mitchell County, to Unaka Springs, Tenn. It includes a roughly 0.25-mile corridor on each side of the river.

All of the land within the proposal is already owned by the federal government and resides within Pisgah National Forest in North Carolina and Cherokee National Forest in Tennessee.

If protected, the section would add to the 144.5 miles along five rivers within the National Wild and Scenic Rivers System in North Carolina.

In 1980, the National Park Service conducted a Wild and Scenic study of the entire length of the Nolichucky River. The study did not recommend protection.

In 1994, the U.S. Forest Service conducted a Wild and Scenic study and completed an environmental impact statement of the remote 7.2-mile section within the river’s gorge. The study concluded the section to be suitable for designation because of its “outstanding and remarkable geologic, scenic and recreational values.”

The federally mandated management plans for national forests also include rivers and streams that are “suitable” for inclusion in the Wild and Scenic system. The Forest Service may recommend rivers, but only Congress can designate them for inclusion in the system.

Eligible rivers within a national forest, however, must be managed to protect their free-flowing status and their “outstandingly remarkable value.”

Colburn anticipates that the future Pisgah and Nantahala National Forest Management Plan, currently in its final stages of development, will continue to include the Nolichucky as suitable and eligible for designation.

Support mounts

Following the circulation of the petition in 2017, Colburn attempted to consolidate enthusiasm for the designation into a singular effort and vision.

At the time, Colburn was seeking collaborative support for Wild and Scenic suitability for the Nolichucky and other Western North Carolina rivers as part of the Pisgah and Nantahala National Forest Management Plan revision process, expected to be finalized this year.

“There are 6,000 miles of Wild and Scenic rivers in Congress right now,” Colburn said. “There’s a lot of movement and bipartisan enthusiasm around the Wild and Scenic (designation). I felt like it was a great time to have this idea be introduced.” He added that protecting rivers often has bipartisan support in Congress.

Typically, however, designation follows a campaign to build community support and backing from local governments. It’s customary, Colburn said, that members of Congress require approval from local governments before initiating legislation.

Colburn said the designation effort was community-driven with significant support from regional recreation enthusiasts, businesses and economic development professionals.

American Whitewater has led several Wild and Scenic River support campaigns across the nation and provides technical support to develop proposals.

His role, he said, was to help share information with the press and decision makers about the designation.

In fact, initially there was enthusiasm from local governments.

Inspired by the effort to seek designation, Halley Burleson, a resident of Spruce Pine, lobbied local government officials in Mitchell and Yancey counties to support the designation, including members of the Mitchell County Commission, the Economic Development Commission and the county manager.

“I realized that someone needed to step up and take ownership,” Burleson told Carolina Public Press.

Colburn said American Whitewater eventually hired Burelson as a contractor to provide additional leadership.

In late 2019, Burleson and Colburn met with representatives of U.S. Sens. Richard Burr and Thom Tillis in Washington.

Based on those meetings, Colburn and other advocates felt that the senators would entertain co-sponsoring legislation pending county support.

Neither senator’s office responded to Carolina Public Press’ request for confirmation.

In January 2020, Burleson presented to both county commissions during their regular meetings. Following her presentations, both commissions voted to support the designation.

A Jan. 27, 2020, letter to Burr signed by Yancey County Manager Lynn Austin, extended the Yancey County commissioners’ support for Wild and Scenic designation.

“Not only is preservation key to future generations, but it is a huge player in our current economic well-being,” the letter said. “This designation is the best way to ensure the heritage of this river is maintained for the future generations to enjoy.”

Jacob Will, then-chairman of the Mitchell County Board of Commissioners, sent a similar letter to Burr and Tillis supporting the designation.

“Our county knows the importance of tourism and having outdoor destinations that can draw people into our county,” he wrote. “We ask that you help us protect this important river by designating the Nolichucky as a Wild and Scenic River.”

In addition, the economic development commissions of both Yancey and Mitchell counties sent letters to the senators supporting the designation.

Cracks form

Months prior to Burleson’s presentation, the Unicoi County Commission’s rafting, tourism and economic development committee hosted a public discussion in July 2019 to discuss the Wild and Scenic designation to address concerns of farmers and private property owners, with a second question-and-answer session on Jan. 30, 2020.

Colburn said he was invited to those discussions, which also included representatives of the U.S. Forest Service, local business owners and members of the farming community.

Among the opponents to the designation is Renea Jones, president of the Unicoi County Farm Bureau board of directors and operator of Jones and Church Farms. She said the designation will allow the federal government to condemn private land outside the boundaries of the proposal.

Jones understands the proposal is within national forest boundaries, but she isn’t convinced that the government won’t find a way to acquire more land.

She cited the National Wild and Scenic Rivers System website, which says, “Congress could ignore the agency recommendations and do something entirely different (e.g., designate a different segment from that recommended).”

“It can be done and has been done. I don’t want to take a chance on the Forest Service,” she said. “That’s a big part of it.”

According to the same website, the federal government “has rarely exercised its eminent domain powers.”  “Nearly all” of the government’s use of condemnation occurred in the “early years” of the act’s implementation.

The American Farm Bureau Federation, or AFBF, is a national lobbying and insurance group with affiliates in all 50 states.

According to the Tennessee Farm Bureau’s 2019 resolutions, the organization opposes any additions to the National Wild and Scenic Rivers System and “urges reevaluation of all existing wild and scenic rivers.”

That position is in line with the Farm Bureau’s national policy on Wild and Scenic Rivers.

Jones has said she is also concerned about the impact of the river’s designation on agricultural operations within the Nolichucky watershed and remains unconvinced that the designation is needed in the first place. She has disputed evidence that the designation would have a meaningful economic impact.

“It’s already owned by the Forest Service and already protected,” Jones said. “There are no better stewards than farmers. We want to protect the river. So, I think we all want the same thing, we just don’t agree on the means to get there. Additional government control is something that I just can’t understand why we would want to impose on ourselves.”

Despite the concerns Jones has voiced, Southeastern Environmental Law Center attorney Sam Evans said the Wild and Scenic Rivers Act does not regulate upstream pollution. Those regulations are guided by other legislation, such as the Clean Water Act or Endangered Species Act.

The government’s freedom to condemn private land is also restricted, Evans said.

“Within the boundaries of a designated Wild and Scenic River corridor, the Forest Service can theoretically take land to make it part of the unit,” said Evans, but he said the Forest Service has never done that in this region.

Additionally, Evans said, the legislation prohibits the Forest Service or any other public agency from exercising the right of eminent domain to condemn land if more than half of the land within the Wild and Scenic boundary is already federally owned.

Evans said 100% of the proposed Nolichucky designation is within federal ownership.

“Their argument doesn’t make legal sense,” Evans said.

“It’s a political argument. It’s a scare tactic to prevent the successful adoption of a community-led proposal to designate a Wild and Scenic River that people love and will continue to love and would be proud of.

“This has very little to do with the Nolichucky. It’s an abstract opposition to the Wild and Scenic Rivers Act.”