Questions & Answers

The Act provides a national policy and program to preserve and protect selected rivers, or segments of rivers, in their free-flowing condition in the National Wild & Scenic Rivers System.  Section 1(b) of the Act states:

It is hereby declared to be the policy of the United States that certain selected rivers of the Nation which, with their immediate environments possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values, shall be preserved in free-flowing condition, and that they and...

Section 16(c) of the Wild & Scenic Rivers Act defines a scenic easement as follows:

“Scenic easement” means the right to control the use of land (including the air space above such land) within the authorized boundaries of a component of the wild and scenic river system, for the purpose of protecting the natural qualities of a designated wild, scenic, or recreational river area, but such control shall not affect, without the owner’s consent, any regular use exercised prior to the acquisition of the easement.

While the Wild & Scenic Rivers...

Yes. Water may be secured through a variety of protection strategies, in the interim. Ultimately, the United States should secure a federal reserved water right in state court or the appropriate forum. Interim measures may include, but are not limited to: state instream flow programs, reservoir operation schedules, endangered species flow recommendations, conservation techniques, cooperative agreements, and water right purchases from willing sellers.

Water law is a complex legal area, and water rights are a highly contentious issue. Whenever a water...

No restrictions to private lands may be applied under the Wild & Scenic Rivers Act. Comprehensive river management plans may establish goals for new construction consistent with classification. There is a wide range of uses compatible with these classifications so long as the overall values and character of the river corridor is maintained. Any effect on private lands would be through state or local zoning. Federal acquisition of lands or development rights would require landowner compensation.

(*For certain rivers, Congress directed the river-administering agency in Section 3(b) to determine which classes “best fit the river or its various segments.”  These administratively segmented rivers should reflect on-the-ground practicalities and, therefore, are unlikely to require subsequent amendment.)

Yes. While Congress specifies the segment divisions of a designated river, in some instances congressional language may require interpretation. For example, a segment division between a wild and scenic classification described as “from the bridge”...

Rivers designated under Section 3(a) of the Wild & Scenic Rivers Act, and most designated under Section 2(a)(ii), are classified in one of three categories depending on the extent of development and accessibility along each section. Designated river segments are classified and administered under one of the following, as defined in Section 2(b) of the Wild & Scenic Rivers Act:

...

No.  The Interagency Wild & Scenic River Guidelines state, “There are no specific requirements concerning the length or the flow of an eligible river segment.  A river segment is of sufficient length if, when managed as a wild, scenic or recreational river area, the outstandingly remarkable values are protected.  Flows are sufficient if they sustain or complement the outstandingly remarkable values for which the river was designated.

No. The United States determines the quantity necessary to protect flow-dependent outstandingly remarkable values.

Water law is a complex legal area, and water rights are a highly contentious issue. Whenever a water allocation issue arises, a river manager should consult with staff with water rights expertise and, as necessary, seek legal counsel.

Once such a river has been found eligible, the federal study agency should, to the extent it is authorized under various laws and subject to valid existing rights, ensure the river and the surrounding area are protected as a potential wild and scenic river pending a suitability determination.

Prior to 1986, Section 3(b) of the Wild & Scenic Rivers Act required the river-administering agency to “prepare a plan for necessary developments in connection with its administration in accordance with such classification.” Through a generic amendment of the Wild & Scenic Rivers Act in 1986, Section 3 was amended with a new subsection requiring a “comprehensive management plan . . . to provide for protection of the river values” (Section 3(d)(1)). The comprehensive river management plan (CRMP) must address:

1. Resource protection;


2. Development of lands...

The study report for a congressionally authorized Section 5(a) study river is required to be forwarded by the study agency within the period specified in Section 5(b). This study report must be forwarded to Congress no matter what the outcome of the study.

Unlike the firm deadlines established for Section 5(a) study reports, the Act is silent in regard to Section 5(d)(1) rivers. Thus the river-administering agencies have considerable latitude in how and when to transmit the study report for rivers they have found suitable and are recommending to Congress for designation. The...

Congress declared its intent to protect the water quality of rivers added to the National Wild & Scenic Rivers System in Section 1(b) of the Wild & Scenic Rivers Act. Congress further specified that the river-administering agencies cooperate with the EPA and state water pollution control agencies to eliminate or diminish water pollution (Section 12(c)).

Circumstances where agencies should always seek information and advice from each other are:

1. In agency inventory and planning processes, and environmental analysis processes for aquatic ecosystems and regional watersheds; and,
2. When proposed actions have the potential of affecting other agency-administered portions of the river.

The need to clarify the terminus should be identified as a management concern/public issue during the planning process and considered in establishment of the initial boundary. The proposed clarification associated with establishment of initial boundaries must be undertaken with full public input and disclosure and is often completed during development of the comprehensive river management plan (CRMP).

In rare instances where the agency did not define the terminus to fit on-the-ground practicalities (e.g., a terminus described in legislation as “from the dam” included a dam and dam-...

In agency parlance used for planning purposes, river “areas” include the entire length of a study or designated river and its adjacent lands, an average of 320 acres per river mile (except on certain other rivers as specified by Congress and in Alaska, which is 640 acres for rivers located outside national parks). A river “segment” is a portion of the river area which has been delineated for evaluation and planning purposes. Its subsequent classification is dependent upon the level of development of the shoreline, watercourse and access at the time of designation. Significantly different...

Yes. To withdraw a scenic or recreational river segment, the managing agency must submit a separate public land order or notice of realty action.

(*For some rivers, Congress has directed the river-administering agency in Section 3(b) to determine which classes “best fit the river or its various segments.”  These administratively segmented rivers should reflect on-the-ground circumstances and, therefore, are unlikely to require subsequent amendment.)

Yes. In a very few cases, the legislation designating a river erroneously describes a segment division and needs to be amended to fit on-the-ground circumstances. For example, the designating language for the Upper Rogue Wild & Scenic River...

Section 13(c) of the Wild & Scenic Rivers Act expressly reserves the quantity of water necessary to protect river values, including water quality and flow-dependent outstandingly remarkable values. This reservation of water is called a federal reserved water right and is generally adjudicated in a state court (e.g., basin-wide adjudication). River designation does not supersede existing, valid water rights.

Refer also to CRS Report for Congress, The Wild and Scenic Rivers Act and Federal Water Rights, by Cynthia Brougher (January 9, 2009).

...

Agency officials are required to coordinate when their responsibilities relevant to wild and scenic rivers overlap.  Officials should determine the level of study to be conducted, who will lead the study, and, to the extent necessary and feasible, prepare a joint document for submission to Congress or congressional delegations.

Wild and scenic river designation does not change land ownership or grant new privileges to the public on private lands. If the riverbanks are in private ownership, the landowner continues to control their use after designation. Ownership of the bed and bank of a river may be affected by whether the river is determined navigable.

River-administering agencies must evaluate proposed water resources projects under the appropriate standard of Section 7. The evaluative standard for projects located within a wild and scenic river corridor, Section 5(a) study area, or qualifying Section 2(a)(ii) application area is whether the project would have a “direct and adverse effect.” The evaluative standard for projects located downstream, upstream, or on a tributary to a wild and scenic river corridor or Section 5(a) study area is whether the project would “invade the area or unreasonably diminish” for designated wild and scenic...

No. The designation does not supersede existing, valid water rights.

Water law is a complex legal area, and water rights are a highly contentious issue. Whenever a water allocation issue arises, a river manager should consult with staff with water rights expertise and, as necessary, seek legal counsel.

Yes. River-administering agencies have an affirmative duty to evaluate pre-existing uses on federal lands to determine whether such uses are protecting the values for which the wild and scenic river was designated. Grazing may continue when consistent with protecting river values. If grazing practices are determined to be inconsistent with wild and scenic river management objectives, then changes in grazing practices may be required.

Corridors may not exceed an average of 320 acres per river mile over the designated portion of the river (except on certain other rivers as specified by Congress and in Alaska, which is 640 acres for rivers located outside national parks). Agencies delineate boundaries based on natural or manmade features (canyon rims, roads and ridge tops, etc.) and legally identifiable property lines.

Yes, but with many restrictions. It is important to note that condemnation is a tool that has been used only rarely on wild and scenic rivers. The objective of wild and scenic river designation is to protect and, as possible, enhance the values which caused the river to be designated. Should some proposed or actual use clearly threaten the values the river was designated to protect, the river managing agency would work with a landowner to explore ways to avert the threat through local zoning, state provisions, land exchanges, or purchases on a willing-seller/willing-buyer basis....

No. Navigability determinations are based on factors other than wild and scenic river designation. Because of this, designation does not affect ownership of the submerged lands [or minerals lying] under the river.

Any federally assisted construction project—by loan, grant, permit, license, or otherwise—which would affect the free-flowing condition of a wild and scenic river. This includes any hydroelectric project licensed by the Federal Energy Regulatory Commission (FERC)  under Part 1 of the Federal Power Act (36 CFR 297).

Review of hydroelectric and federally water resources projects under Section 7 of the Wild & Scenic Rivers Act is complex. Please refer to Wild & Scenic Rivers Act: Section 7 (2004), a technical...

Yes it may. Once water rights are adjudicated, the federal reserved water right may affect future water development projects, depending upon the impacts of the new proposal on the river’s flow-dependent values. Adjudications have been completed or are in process on 15 designated wild and scenic rivers. To date, existing flows have been sufficient to protect current and future demands and to meet the purposes for which the river was designated. River-administering agencies can work with local and state agencies to negotiate solutions that accommodate future water needs and that protect wild...

Agency land use or resource management plan records should include documentation of the eligibility criteria, inventory process, evaluation, and outcome. Agency field offices retain the administrative record and documents related to an assessment of the free-flowing condition and identification of outstandingly remarkable values.

The Wild & Scenic Rivers Act requires that detailed boundaries portrayed on maps be established and submitted to Congress within one year of designation. Agencies may finalize boundaries through their respective land management planning process.

Pending the establishment of detailed river boundaries, the Wild & Scenic Rivers Act specifies that the interim boundary is one-quarter mile on each side of the river as measured from the ordinary high water mark.

Section 3(b) of the Wild & Scenic Rivers Act states:

The agency charged with the...

No. Non-indigenous species need not be removed unless they are degrading other important resource values. Practical considerations, such as the effort or expense of eradicating a non-indigenous species and its importance (e.g., game species), should also be considered. This issue is generally addressed in the management plan.

Regardless of the study agency’s eligibility and suitability findings, a Section 5(a) study river is protected by the conditions and restrictions specified in Sections 7(b), 8(b), 9(b), and 12(a) of the Wild & Scenic Rivers Act during the period of the study, plus up to three years after the required report is submitted to Congress. In other words, these protections are independent of the recommendation of the study, allowing for Congressional consideration.

Projects with the following attributes are generally considered most harmonious with river ecosystems:

• Those made of native materials, e.g., wood, rock, vegetation, and so forth that are similar in type, composition or species to those in the vicinity of the project.
• Those using construction materials that are natural in appearance, e.g., logs with bark intact as opposed to being peeled and whole naturally weathered rocks as opposed to split or fractured (i.e., riprap).
• Those with materials placed in locations, positions, and quantities mimicking natural...

The requirements specified for a CRMP in Section 3(d)(1) are most often developed through a separate-in-time planning process. This can result in either an amendment to the direction in the agency’s unit-wide plan o a stand-alone plan, depending on agency practices. For designated rivers that are separate NPS units, the CRMP is the General Management Plan (e.g., St. Croix National Scenic Riverway).

Under the Wild & Scenic Rivers Act, designation neither gives nor implies government control of private lands within the river corridor. Although many rivers include private lands within the boundaries of the designated river area, management restrictions would apply only to federal lands. The federal government has no power to regulate or zone private lands under the Wild & Scenic Rivers Act; however, administering agencies may highlight the need for amendment to local zoning (where state and local zoning occurs). People living within a river corridor may use their property as...

Once such a river segment has been found to be ineligible, the agency will manage the river and its corridor based on the underlying management direction in its programmatic plan and need no longer protect it as a potential wild and scenic river.

Camping is often important to the enjoyment of wild and scenic rivers. As appropriate, and when private interests do not provide sufficient facilities, the federal managing agency attempts to provide them on federal lands. As a condition of use, consistent with river classification and the management objectives for the river area, the managing agency may specify that camping will be permitted only in designated locations. Enforcement of camping restrictions and limitations can be through indirect means (brochures, maps, signs, etc.) and/or direct means (permits, enforcement personnel, etc...

The Wild & Scenic Rivers Act expressly prohibits the Federal Energy Regulatory Commission (FERC) from licensing the construction of a hydroelectric project or project works (e.g., facilities such as the powerhouse, access roads, transmission lines) under Part 1 of the Federal Power Act “on or directly affecting” a designated wild and scenic river. However, on the few rivers with a FERC-licensed hydroelectric project/project works within the river’s boundaries at the time of designation, existing operations may continue.

Relicensing of existing FERC-licensed hydroelectric...

Generally, no. Restrictions on public boating access and the implementation of entry permit systems (rationing and/or allocation) are not usually related to designation. Limitations on boating usually relate to the amount of use and/or types of user. Those rivers with use levels or types of use beyond acceptable limits (i.e., resulting in impacts to the values) may necessitate restricted access regardless of designation.

The Act (Public Law 90-542; 16 U.S.C. 1271-1287) was signed on October 2, 1968. It has been amended many times, primarily to designate additional rivers and authorize additional rivers for study for possible inclusion.

The Interagency Guidelines interpret Section 10(a) of Wild & Scenic Rivers Act (the protect and enhance mandate) as “a non-degradation and enhancement policy for all designated river areas, regardless of classification. . . . Specific management strategies will vary according to classification but will always be designed to protect and enhance the values of the river area.” The overarching goal articulated in Section 10(a) is to protect existing high-quality conditions while improving conditions when unacceptable impacts are documented, thus leaving each river to future generations in...

Corridor boundaries are established to protect the free-flowing condition, water quality, and outstandingly remarkable values for which the river was designated. Generally, the corridor width for designated rivers cannot exceed an average of 320 acres per mile which, if applied uniformly along the entire designated segment, is one-quarter of a mile (1,320 feet) on each side of the river. Boundaries may be wider or narrower, but are not to exceed the 320 acre average per mile per Section 3(b) of the Wild & Scenic Rivers Act without approval by Congress. The acreage of any islands...

Yes, a CRMP is developed in compliance with the NEPA. The purpose and need for the proposed action is to protect and enhance the values for which the river was designated (free-flowing condition, water quality, and outstandingly remarkable values), within its classification(s). The proposed action establishes appropriate goals, objectives, and/or desired conditions to meet those purposes. Alternative courses of actions are developed and analyzed relative to achieving overall goals and desired conditions within the wild and scenic river corridor. A “no action” alternative, representing the...

A river authorized for study under Section 5(a) of the Wild & Scenic Rivers Act is subject to the conditions and restrictions specified in Sections 7(b), 8(b), 9(b), and 12(a) of the Act.

The river is protected for the duration of the study plus up to three years after the required report is submitted (along with the President’s recommendation) to Congress. Should Congress not act within the three-year time frame, the river is no longer afforded protection by the Wild & Scenic Rivers Act. In cases where a study has not been submitted to Congress, the statutory protections...

Local government entities are encouraged by federal wild and scenic river-administering agencies to provide for the protection of wild and scenic river values in their land use plans, including the use of zoning and other land use measures. Their participation in development of the comprehensive river management plan (CRMP) in areas of mixed ownership is essential to ensure an enduring planning strategy that protects river values and respects the rights of landowners. In some cases, local governments have chosen to strengthen land-use requirements during a wild and scenic river study, in...

There are a number of steps that federal agencies use in their evaluation process:

• Assessment of free-flowing condition and resource values.
• Finding of eligibility or ineligibility.
• Inventoried or tentative classification based on the development of shoreline, watercourse, and access.
• Establishment of tentative, preliminary, or proposed boundaries and/or river areas.
• Establishment of protective management requirements for eligible rivers.

No. Where tribal lands are involved, sovereign tribes retain authority over the lands; however, the river-administering agencies seek opportunities to collaborate in protecting values of joint concern.

Amending the lateral boundary of a designated river requires analysis and decision under the National Environmental Policy Act (NEPA). The environmental analysis process need not be complicated and may only require the proposed action and a no-action alternative. Amendment of a wild and scenic river boundary may also be timed with revision of the comprehensive river management plan and related decision under the NEPA. In either case, notice of the amended boundary should be published in the Federal Register and the legal description and maps forwarded to Congress and made...

The Wild & Scenic Rivers Act does not specifically mention aquatic or upland non-indigenous species. While non-indigenous species may be introduced—provided that doing so is not contrary to another law or the policy of the managing agency, and would not result in the degradation to the river’s values—the use of native species is generally preferred. Indirect impacts of introducing non-indigenous species, e.g., increasing recreational fishing, should also be considered. Additional guidance for a specific river is usually included in its management plan.

Wild and scenic river study reports are prepared in three instances:

1. When Congress authorizes a study pursuant to Section 5(a) of the Wild & Scenic Rivers Act.


2. For eligible rivers that have also been determined suitable by a federal land management agency pursuant to Section 5(d)(1) of the Wild & Scenic Rivers Act, when the agency deems it appropriate to forward the recommendation.


3. For state-nominated Section 2(a)(ii) rivers, the National Park Service prepares a report determining whether the candidate river meets the requirements of...