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...
Yes, if they are consistent with management objectives for the river and do not degrade water quality or the outstandingly remarkable values for which the river was designated.
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...
Easements on private lands acquired for the purposes of protecting wild and scenic rivers do not provide public access unless this right was specifically acquired from the private landowner. A trail or road easement by necessity would involve public use provisions. Any provisions for public use of private lands must be specifically purchased from the landowner.
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...
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...
No. Federal agencies do not have the authority to reimburse landowners for damage to their lands as a result of public use. However, wild and scenic river designation is unlikely to increase or invite vandalism. Granting access remains the owner’s responsibility and vandalism is handled by local law enforcement authorities. Federal river-administering agencies do, however, work closely with landowners to minimize problems through brochures and maps, signs, etc., and many landowners feel they are better off with the agency taking some responsibility.
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.
Section 16(b) of the Wild & Scenic Rivers Act, defines a “river” as “a flowing body of water . . . or portion, section, or tributary thereof. . . .” “Free-flowing” is defined as “existing or flowing in natural condition without impoundment. . . .” Therefore, any section of river with flowing water meets the technical definition of free flowing, even if impounded upstream.
As of June 2022, some 226 river segments comprising 13,417 miles have been afforded protection in the National System. These nationally recognized rivers comprise some of the nation’s greatest diversity of recreational, natural, and cultural resources, offering great scientific value and scenic beauty. By comparison, more than 75,000 large dams across the country have modified at least 600,000 miles, or about 17% of America’s rivers (possibly more than 20% – figures are best estimates).
Should the purchase of land become necessary, condemnation is typically a last resort and only used when:
- Land is clearly needed to protect resource values, or provide necessary access for public recreational use, and a purchase price cannot be agreed upon.
- Clear title to a property is needed, in which case condemnation is merely a legal procedure that has nothing to do with government/landowner differences.
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...
Once such a river has been found eligible, the federal study agency should, to the extent it is authorized under the Wild & Scenic Rivers Act 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.
Local government entities are encouraged by federal management 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.
State land-use requirements often require each local jurisdiction to address uses and activities within wild and scenic river areas in their planning updates. Such local planning may be carried out by comprehensive plan policies, zoning requirements, negotiations with landowners, or through other mechanisms.
Circumstances where agencies should always seek information and advice from each other are:
- In agency inventory and planning processes, and environmental analysis processes for aquatic ecosystems and regional watersheds; and,
- When proposed actions have the potential of affecting other agency-administered portions of the river.
Yes. Congress has frequently added wild and scenic river status to rivers flowing through national parks, national wildlife refuges, and designated wilderness. Each designation recognizes distinct values for protection, and management objectives generally designed to not conflict. In some cases, wild and scenic river designations extend beyond the boundaries of other administrative or congressional area designations, thereby providing additional protection to the free-flowing condition and river values of the area. Section 10(b) of the Wild & Scenic Rivers Act addresses potential...
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.
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).
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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...
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...
Some examples of other similar outstandingly remarkable values include botanical, hydrological, paleontological, scientific, or heritage values.
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...
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.
Upon congressional authorization for a study (Section 5(a)) or by federal agency initiative (Section 5(d)(1)).
The Interagency Guidelines may be revised. The Interagency Wild & Scenic Rivers Council periodically evaluates tasks to be undertaken.
(*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”...
Generally, existing agricultural and grazing practices, and related structures are not affected by designation. The Wild & Scenic Rivers Act does not give federal agencies authority to regulate private land. Consequently, the only effect of designation is to authorize the purchase of easements within the river corridor, and to enable federal agency staff to provide technical assistance to private landowners interested in reducing impacts on the river’s water quality and riparian integrity.
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.
(*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...
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.
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...
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.
In the Wild & Scenic Rivers Act, river values identified include scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values. The Wild & Scenic Rivers Act does not further define outstandingly remarkable values. However, agency resource professionals have developed interpretive criteria for evaluating river values (unique, rare, or exemplary) based on professional judgment on a regional, physiographic, or geographic comparative basis. (Refer to The Wild & Scenic River Study Process (1999).)
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...
A variety of methodologies are used to determine instream flows necessary to protect flow-dependent outstandingly remarkable values for a specific wild and scenic river. Methodologies can range from staff/expert opinions (e.g., flows necessary for boating) to complicated hydraulic models (e.g., Instream Flow Incremental Methodology and Physical Habitat Simulation Models) used to simulate fish habitat requirements.
Water law is a complex legal area, and water rights are a highly contentious issue. Whenever a water allocation issue arises, a river manager...
The following summarizes the sections of the Wild & Scenic Rivers Act related to water resources (quality and quantity):
Section 1(b) of the Wild & Scenic Rivers Act establishes that the national policy of dam and other construction be complemented by a policy that would preserve other selected rivers or sections thereof “in their free-flowing condition to protect the water quality of such rivers and to fulfill other vital national conservation purposes.”
Section 10(a) states: “Each component of the national wild and scenic rivers system shall be administered in...
The need to clarify a segment division 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 segment division to fit on-the-ground practicalities (e.g., a terminus described in legislation as “from the bridge”...
No. However, the federal land administering agency must protect wild and scenic river values on federal lands.
Does wild and scenic river designation lead to increased river use and the need for a permit system?
There are no known studies comparing river use levels before and after wild and scenic river designation with changes in use levels of similar non-wild and scenic rivers. Factors other than wild and scenic river designation (i.e., river and water attributes, access to the river, and availability of facilities and commercial services) are considered to be the major influences on river use levels. For wild and scenic rivers, as for other rivers managed by federal agencies, the implementation of permit systems or other limits of use are typically undertaken when use exceeds an acceptable...
Subject to valid existing rights, rivers authorized for study under Section 5(a) of the Wild & Scenic Rivers Act are withdrawn under the mining laws while in study status; this withdrawal covers the bed and bank and federal lands situated within one-quarter mile of the bank on each side of the river. River study areas are not withdrawn from mineral leasing but are subject to conditions determined by the appropriate Secretary necessary to safeguard the area during the study period. However, the bed and bank and federal lands within two miles of the bank of each side of the rivers...
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.
Timber management activities on federal lands outside the corridor are managed to protect and enhance the values that caused the river to be designated. Measures needed to protect and enhance the river’s values are developed through the river planning process and include management direction as necessary for lands adjacent to the corridor.
No. However, all treatments must protect river values. Treatment methods that also include in-channel activity (e.g. dredging) are subject to review under Section 7(a) as water resources project.
Once such a river segment has been found to be ineligible, the agency will describe the basis for this finding in the study report and follow its internal procedures to transmit the report to the Congress in accordance with Section 7(b) of the Wild & Scenic Rivers Act.
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. The Wild & Scenic Rivers Act directs other federal agencies to protect river values. It explicitly recognizes the regulatory roles of the Federal Energy Regulatory Commission and the Environmental Protection Agency in protecting wild and scenic rivers, and directs other federal departments and agencies that permit or assist in the construction of water resources projects to do likewise. The role of such federal agencies in water resources project construction may be through regulation, direct funding, or indirectly funding by providing federal assistance to others.
All...
Rivers in Alaska outside of national parks and Elkhorn Creek in Oregon (640 acres per river mile) exceed the 320 acre average.
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...
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).
It depends on whether the collecting activity is commercial or noncommercial in nature and subject to river-administering agency regulation. Mining under the 1872 mining law is a commercial and business activity tied to valid existing rights of claims and is regulated as such (36 CFR 228, 43 CFR 3809, 8365, et al).
Non-commercial mineral collecting for recreational purposes (e.g., hobby collecting, rock-hounding, gold panning, sluicing, or dredging) may be authorized by the Bureau of Land Management or the U.S. Forest Service depending on the amounts collected, size and scale of...