River-administering agencies use a variety of approaches to protect or enhance water quality including, but not limited to: developing a cooperative water quality plan with the EPA and state agencies; securing cooperative funding to assess or remediate problems; and providing technical assistance to landowners and communities, often through local conservation districts.
River segments may be tentatively classified for protective management purposes prior to a final suitability determination and/or congressional action. This ensures that river values and characteristics are protected (subject to agency policies and standards) until the evaluation process and possible designation is completed.
Citizen stewards are increasingly important in protecting wild and scenic river values, often through river-specific or regional stewardship organizations. Individually, or through nonprofit entities, citizens help survey and monitor resource conditions, provide interpretive and education opportunities, contribute to restoration efforts, and support many other protection activities.
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...
Section 4(f) refers to the original section within the United States Department of Transportation (DOT) Act of 1966 (49 U.S.C. Section 303(c); 23 U.S.C. Section 138). The DOT Act was enacted to ensure that transportation plans and programs include measures to maintain or enhance the natural beauty of publicly owned public parks, recreation areas, wildlife/waterfowl refuges, and historic sites of local, state, or national significance transversed by highways.
Boundaries are measured from the ordinary high water mark of the outermost stream channel. That is, boundaries will be measured from the outermost braid unless otherwise specified by Congress. This is typically considered during the suitability determination and in the development of the final river corridor boundary.
The communities of interest are key players in the development of a CRMP. They help with data collection and establishing baseline conditions, identifying issues and opportunities to be addressed in the planning process and, increasingly, in monitoring and implementation of aspects of the CRMP. Sections 10(e) and 11(b)(1) of the Wild & Scenic Rivers Act anticipate the participation of federal, state or local governments, landowners, private organizations and/or individuals in planning, protecting and administering wild and scenic rivers.
The Department of Transportation (DOT), in coordination with the river-administering agency, performs compliance reviews for qualifying properties. While Section 4(f) requires that the river-administering agency’s recommendations for minimizing harm are considered during the planning process, the authority to administer and make Section 4(f) approvals ultimately resides with the DOT. The river-administering agency’s concurrence on any DOT Section 4(f) compliance documents should clearly state that its concurrence is contingent upon a favorable final determination for the project under...
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.”
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...
Eligibility findings are made as a part of a congressionally authorized study under Section 5(a), or pursuant to agency inventory and planning under Section 5(d)(1). For Section 2(a)(ii) rivers, the National Park Service will make an eligibility determination under authority delegated by the Secretary of the Interior following application by the governor(s) for federal designation.
Suitability is an assessment of factors to provide the basis for determining whether to recommend a river for addition to the National Wild & Scenic Rivers System. Suitability is designed to answer these questions:
- Should the river’s free-flowing character, water quality, and outstandingly remarkable values (ORVs) be protected, or are one or more other uses important enough to warrant doing otherwise?
- Will the river’s free-flowing character, water quality, and ORVs be protected through designation? Is it the best method for protecting the river corridor...
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...
In many cases, there may be no practical effect. However, laws like the Wilderness Act do allow certain activities in designated wilderness which may be incompatible on a wild and scenic river, e.g., water resource developments if authorized by the President. In addition, wild and scenic river designation prohibits federal participation in, or assistance to, water resource developments upstream or downstream of a designated river (potentially outside the wilderness area) which may adversely affect the designated river segment. Agencies are required by policy and law to evaluate potential...
Wild and scenic river designations generally cause property values to remain stable or increase. For example, see Economic Benefits of Conserved Rivers: An Annotated Bibliography (Porter, B., Collier, S., Becerra, N., and Schultz, J. 2001. National Park Service – Rivers and Trails Conservation and Assistance Program, Washington, DC. 27pp.).
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.
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.
Prior to completion of the CRMP, proposed projects and new decisions (e.g., issuance of a special-use permit) on federal lands are evaluated by the wild and scenic river-administering agency to ensure they protect and, to the extent possible, enhance river values (free-flowing condition, water quality and outstandingly remarkable values). The necessary evaluation framework is a detailed description of the existing conditions of these values at the time of designation. Absent this information it may not be possible to evaluate the effects of an activity relative to the non-degradation and...
Yes. In some river study authorizations Congress has required the study agency to work with state and local governments and the public to develop a CRMP in concert with the study process to assist in determination of the river’s suitability. Such pre-designation CRMPs have, in some cases, been adopted in the legislation adding the river to the National Wild & Scenic Rivers System. In cases where Congress has not authorized a pre-designation CRMP, agencies have taken the initiative to develop elements of the CRMP in the study report (pre-designation).
No. The Wild & Scenic Rivers Act specifically prohibits the federal government from expending funds on Section 2(a)(ii) rivers, except to manage federal lands or to provide technical assistance to local managers.
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....
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.
Upon congressional authorization for a study (Section 5(a)) or by federal agency initiative (Section 5(d)(1)).
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...
No. The protection afforded by Section 7(b) of the Wild & Scenic Rivers Act does not apply to Section 5(d)(1) study rivers. However, the managing agency should, within its authorities, protect the values which make the river eligible or suitable (free-flowing condition, water quality and outstandingly remarkable values).
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 report of the Interagency Wild and Scenic Rivers...
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.
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.
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. Motorized access allowed prior to designation will, generally, be allowed post designation, subject to congressional intent and river management objectives. However, if motorized use adversely impacts a river’s water quality or outstandingly remarkable values, or if the use is not consistent with the river’s classification the route may be closed or regulated.
The continued legality of motorized use on land or water is best determined through the river management planning process, which considers factors such as impacts on river values, user demand for such motorized...
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).
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...
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.
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 public’s right to float a particular river does not change with designation. Neither does designation give river users the right to use, occupy, or cross private property without permission.
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.
Designation may cause an increase in use along the river as new visitors seek it out. However, the wild and scenic river management requirements should ensure that any such increase will not damage resources on private property. If anything, there will be increased oversight after designation, discouraging littering, trespass and vandalism. Private landowners may continue to post their property with “No Trespassing” signs or require users to obtain landowner permission.
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...
These facilities will be provided if they are consistent with the management plan for each river and if funds are available.
Yes. Section 7(b) of the Wild & Scenic Rivers Act provides the same protection to study rivers authorized by Congress, except that the qualifying word “unreasonably” does not appear before “diminish” for projects located above, below, or on a stream tributary to the study segment’s boundaries. The intent and effect is to provide greater protection for study rivers from proposed hydroelectric facilities or other federally assisted water resource projects during the time-limited study process. Identical protection from water resource projects also applies to rivers that were previously...
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...
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. 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.
Due to the dams, diversions, and water resource development projects that occurred from the 1930’s to the 1960’s, the need for a national system of river protection was recognized by conservationists (notably Frank and John Craighead), congressional representatives (such as Frank Church and John Saylor), and federal agencies. The Act was an outgrowth of the national conservation agenda of the 1950’s and 1960’s, captured in the 1962 recommendations of the Outdoor Recreation Resources Review Commission. The Act concluded that selected rivers be preserved in a free-flowing...
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...
(*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”...
The federal wild and scenic river-administering agency is responsible for implementing the Wild & Scenic Rivers Act’s requirements, including the development of a comprehensive management plan for each river within three full fiscal years from the date of designation. It is also responsible to protect and enhance a river’s values, through its authorities on federal lands and through voluntary, cooperative strategies developed with other governments, tribal nations, and landowners on non-federal lands, and to evaluate water resources projects under Section 7(a).
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...
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.
No. The river study, enabling legislation, and subsequent management planning process will consider how best to protect river values while recognizing private property rights.