Yes. For purposes of eligibility evaluation, the volume of flow is sufficient if it is enough to sustain or complement the outstandingly remarkable values identified within the segment. Rivers with intermittent or non-perennial flows exist within the National Wild & Scenic Rivers System and may be representative of rivers within particular physiographic regions.
There are more appropriate and cost-effective ways to ensure resource conservation along wild and scenic rivers than using the Wild & Scenic Rivers Act’s condemnation authority. (Refer to Protecting Resource Values on Non-federal Lands (1996).)
Agencies may acquire properties using appropriated funds under the Land and Water Conservation Fund Act or other authorities. Owners are contacted in order to see if an exchange or voluntary purchase can be negotiated.
Yes, the federal government may seek to control use on adjacent lands under very limited circumstances. The Constitution gives the federal government certain limited powers to control uses on state-owned lands that affect adjacent federal property. These powers may be exercised through the Property Clause, which provides that, “Congress shall have the power to make all needful rules and regulations respecting the territory or the property belonging to the United States.”
The federal government may also regulate use and/or activities occurring on the surface waters...
Yes. The federal agency should consider a wide variety of internal and external sources from which to identify potentially eligible rivers. These sources may include: American Rivers’ “Outstanding Rivers List,” statewide river inventories/assessments, published guidebooks, etc. The important point is to develop and apply standardized criteria through a documented evaluation process for potential wild and scenic rivers.
Rivers in Alaska outside of national parks and Elkhorn Creek in Oregon (640 acres per river mile) exceed the 320 acre average.
Congress may classify the river upon the date of designation or authorize classification by the managing agency. In the latter case, managing agencies have one year to finalize the boundary, identify the appropriate classification, and publish a notice in the Federal Register. The agency has three years to complete a management plan. For Section 2(a)(ii) rivers, classification would be established when the Secretary of the Interior designates the river.
A range of projects are allowable to restore natural channel processes and habitat, including placement of limited rock and wood, native plantings to stabilize streambanks, and the removal or addition of fish barriers. Such projects are most likely to protect river values, including a river’s free-flowing condition, provided they:
- Mimic the effects of naturally occurring events such as trees falling in and across the river (including the formation of wood jams), boulders tumbling in or moving down the river course, exposure of bedrock outcrops, bank sloughing or...
Yes. Under Section 5(a) of the Wild & Scenic Rivers Act, the public is involved in the study of rivers authorized by Congress. The report associated with a congressionally authorized study addresses subjects such as current status of land ownership and use in the area; reasonably foreseeable potential uses of land and water which would be affected by designation; the federal agency to administer the river if designated; and the ability of, and estimated costs to, state and local agencies to participate in the administration of such rivers. The public and state, local and tribal...
Section 16(b) of the Wild & Scenic Rivers Act defines a river as “a flowing body of water or estuary, or a section, portion, or tributary thereof, including rivers, streams, creeks, runs, kills, rills, and small lakes.”
Federal lands within the boundaries of designated river areas (one-quarter mile—one-half mile for rivers in Alaska located outside national parks—from the bank on each side of the river) classified as wild are withdrawn from appropriation under the mining and mineral leasing laws by Sections 9(a) and 15(2) of the Wild & Scenic Rivers Act. Federal lands within the boundaries of designated river areas classified as scenic or recreational are not withdrawn under the Wild & Scenic Rivers Act from the mining and mineral leasing laws....
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...
For rivers designated under Section 3(a) of the Wild & Scenic Rivers Act, a state’s responsibilities include:
- Regulating and enforcing fishing and hunting regulations.
- Adjudicating water rights and appropriation.
- Developing and administering water quality standards.
- Administering state land use regulations on non-federal lands.
- Managing state lands and facilities along the river (e.g., state highways, parks, forests).
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).
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:
- Resource protection;
- Development of lands...
Protective management of federal lands in the river area begins at the time the river segment(s) has been found eligible. The free-flowing condition, identified outstandingly remarkable values, and classification are protected to the extent authorized under law and subject to valid existing rights. Affording adequate protection requires sound resource management decisions based on National Environmental Policy Act (NEPA) analysis. Protective management should be initiated by the administering agency as soon as eligibility is determined. Specific management...
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.
The Wild & Scenic Rivers Act states that rivers designated under Section 2(a)(ii) “shall be administered by the State or political subdivision thereof without expense to the United States other than for administration and management of federally owned lands.” The state is responsible for providing protection, except on federally administered lands and with respect to Section 7(a) determinations and securing a federal reserved water right under Section 13(c), both of which are made by a federal agency. The National Park Service provides ongoing technical assistance and partnership...
Timber management activities on non-federal lands outside the corridor are guided by state and local authorities. The river manager may provide technical assistance and/or work with state/local governments to protect river values.
No. Lands owned by a state may be acquired only by donation or exchange per Section 6(a)(1) of the Wild & Scenic Rivers Act.
The priority date is the date the river was added to the National Wild & Scenic Rivers System.
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.
Generally, no. Any provisions for public use of private lands must be specifically included in the terms of the easement. Depending upon the terms and conditions of each easement, public access rights may or may not be involved. For example, a scenic easement may only involve the protection of narrowly defined visual qualities with no provisions for public use. A trail or road easement by necessity may involve public use provisions.
A river identified for study under Section 5(d)(1) is protected by each agency’s policy; i.e., the Wild & Scenic Rivers Act provides no statutory protections. To the extent of each agency’s authority, the river’s free-flowing condition, water quality, outstandingly remarkable values, and classification are protected. Prior to a suitability study, the inventoried classification is protected. If, as the result of a suitability study, a less restrictive classification is recommended for a river or portion thereof, the agency is obligated to protect this recommended classification.
Section 13(g) of the Wild & Scenic Rivers Act allows the granting of easements and rights-of-way within the boundaries of designated components in accordance with applicable laws, provided that the conditions attached to the grant are consistent with the purposes of the Wild & Scenic Rivers Act.
Any portion of a right-of-way project that includes federally assisted construction that may affect the river’s free-flowing condition—and is not automatically prohibited by the Wild & Scenic Rivers Act—is subject to an evaluation by the river-administering agency under Section...
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.
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.
No. There are no special provisions limiting overflights of components of the National Wild & Scenic Rivers System. Certain designated wild and scenic rivers are located by coincidence within restricted overflight areas, but were not the cause of the restriction. Altitude restrictions for civil aircraft in the United States under Federal Aviation Administration (FAA) regulations (e.g, 14 CFR 91.119 and 91.515 which apply to U.S. airspace) and altitude guidelines in the Airman’s Information Manual (Section 4, paragraph 7-4-6) apply to certain chartered areas. The FAA has entered into...
Most rivers have flexible boundaries to accommodate specific features and river values. (Refer to Establishment of Wild and Scenic River Boundaries (1998).)
Section 8(a) of the Wild & Scenic Rivers Act withdraws public (federal) lands within the authorized boundary of a designated component from entry, sale, or other disposition under the public land laws of the United States.
Yes, a federal reserved water right is generally adjudicated in state court (e.g., basin-wide adjudication) in the western United States. It is less clear how federal reserved water rights are adjudicated in the eastern United States. Contact a staff expert and/or legal counsel when trying to protect water quantity.
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. While Congress specifies the termini of a designated river, in some instances congressional language may require interpretation. For example, a terminus described as “from the dam” could be interpreted as including the dam and dam-related facilities. However, to allow for continued dam maintenance, it may be appropriate to establish the boundary a very short distance below the dam or, through specific language, to exclude appurtenant facilities.
The river administrator is well advised to consider on-the-ground practicalities at the initial boundary setting stage, to the extent...
River access is evaluated in the land use planning process. Specific access needs for public enjoyment, as well as any limitations, are determined in the river management plan. In keeping with the requirements of the Wild & Scenic Rivers Act, “wild” rivers are generally inaccessible, except by trail (no roads); “scenic” rivers are accessible by road, which generally don’t parallel the river; and “recreational” rivers may have parallel or crossing road and railroad access.
Wild and scenic river status does not provide federal authority to regulate private lands. The river-administering agency will cooperate with state and local agencies to appropriately monitor and evaluate activities on private land. If such activities (existing or potential) threaten or are incompatible with the values that contributed to the river’s designation, then, to the extent necessary, mitigation will be accomplished in cooperation with landowners and federal, state and local agencies.
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...
Yes. Regardless of whether a river is designated as a wild and scenic river, states have special responsibilities and management constraints with respect to state-owned lands underlying navigable waters. These special responsibilities arise from the Public Trust Doctrine, which requires states to exercise regulatory authority over navigable riverbeds to ensure that the paramount right of public use of the rivers and riverbeds for navigation, commerce, recreation, and related purposes is not substantially impaired. As a matter of common law, the states hold lands...
Maintenance of roads generally would not be affected. In consultation with landowners involved through coordinated management planning, every effort would be made to eliminate or reduce adverse impacts from any proposals for road improvement, realignment and/or new construction. If a proposed new road would have a negative impact on river values, the administering agency will work with the landowner(s) to mitigate the proposal. Should mitigation and/or consultation fail to reduce adverse impacts to an acceptable level, the administering agency could negotiate with the landowner to purchase...
Yes. The Nationwide Rivers Inventory lists potentially eligible rivers. Federal agencies should make an eligibility determination for rivers on the Nationwide Rivers Inventory.
Existing powerline or communication transmission rights-of-way may continue to be used and maintained. New proposals would be evaluated for impacts to river values based on state and local zoning.
Section 6(a)(1) of the Wild & Scenic Rivers Act states:
The Secretary of the Interior and the Secretary of Agriculture are each authorized to acquire lands and interests in land within the authorized boundaries of any component of the national wild and scenic rivers system designated in Section 3 of this act . . . but he shall not acquire fee title to an average of more than 100 acres per mile on both sides of the rivers.
The Wild & Scenic Rivers Act authorizes fee title acquisition to the equivalent of about a 400 foot wide strip of land...
Examples include, but are not limited to, bank stabilization/revetments; bridges (e.g., abutments, piers, approaches); emergency repairs; channelization; channel restoration; culverts; dams and dam removal; dredging or excavation; fish habitat/passage restoration or enhancement; gravel mining; in-channel transmission towers; levees; pipelines; recreation facilities such as boat ramps and fishing piers; water diversions/wells; and activities that are authorized under Section 404 of the Clean Water Act by the United States Army Corps of Engineers (ACOE).
Review of...
Once rivers have been evaluated and determined eligible for further study, agencies conduct an evaluation to determine if the rivers are “suitable” or “not suitable” for wild and scenic river designation within their resource or land management planning processes (Section 5(d)(1)), or usually as a separate study for congressionally authorized studies (Section 5(a)). In each process, the benefits of protecting river values are weighed against other resource values, issues and alternatives.
Either process is typically accompanied by an environmental document, normally an...
No. The Wild & Scenic Rivers Act does not limit the amount of land that may be acquired through purchase of easements, i.e., acquisition of partial rights, such as development rights.
A Section 5(d)(1) study river is protected to the extent of each study agency’s authority and not by the Wild & Scenic Rivers Act. Each agency’s policy is to protect eligible rivers and rivers determined suitable for designation for the life of the respective agency land use plan. A river determined not suitable for designation need no longer be protected as a potential addition to the National Wild & Scenic Rivers System once the study, with its related decision document, is completed.
Section 6(c) of the Wild & Scenic Rivers Act states:
. . . the appropriate Secretary shall issue guidelines, specifying standards for local zoning ordinances, which are consistent with the purposes of this Act. The standards specified in such guidelines shall have the object of (a) prohibiting new commercial or industrial uses other than commercial or industrial uses which are consistent with the purposes of this Act, and (b) the protection of the bank lands by means of acreage, frontage, and setback requirements on development.
The Wild...
The Interagency Guidelines may be revised. The Interagency Wild & Scenic Rivers Council periodically evaluates tasks to be undertaken.
The economic impacts of implementing various alternatives should be addressed through the evaluation process to determine whether a river is a suitable addition to the National Wild & Scenic Rivers System or through the river management planning process, or a designated wild and scenic river. Economic issues, such as development and ecotourism, both inside and outside of potentially designated river corridors may be considered.
WSR designation seeks to protect and enhance a river’s current natural condition and provide for public use consistent with retaining those values. Designation affords certain legal protection from adverse development, e.g., no new dams may be constructed, nor federally assisted water resource development projects allowed that are judged to have an adverse effect on designated river values. Where private lands are involved, the federal managing agency will work with local governments and owners to develop voluntary protective measures.
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).
...
On September 7, 1982, the Departments of Agriculture and the Interior outlined in the Federal Register (47 FR 39454) eligibility and classification criteria, the evaluation process and content, and reporting requirements for potential wild and scenic rivers and management guidelines for designated wild and scenic rivers. These guidelines were formulated to provide a uniform evaluation and consistent management approach in the identification, evaluation, reporting, and management of wild and scenic river segments. These replaced earlier guidelines developed in 1970.