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...
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.
Yes. To withdraw a scenic or recreational river segment, the managing agency must submit a separate public land order or notice of realty action.
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....
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.
The river-administering agency must take the actions necessary to remedy adverse impacts and/or show measurable progress in addressing identified adverse effects. The Wild & Scenic Rivers Act gives river-administering agencies authority to adjust or eliminate livestock grazing, or any other commercial use, if doing so is necessary to meet the protection and enhancement standard.
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.
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...
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).)
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.
Timber management activities on non-federal lands within wild and scenic river corridors are guided by state and local authorities. Under the Wild & Scenic Rivers Act, the only way the federal government can restrict private timber management is through purchase of timber rights (in easement or fee title). The river manager may provide technical assistance and/or work with state/local governments to protect river values.
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 need to amend 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 amendment 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) as a basis to make a recommendation to Congress to amend the Wild & Scenic Rivers Act.
The river-administering agency can only recommend such a change to Congress. A subsequent...
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.
Administering agencies do not have any authority to control public use of private lands. Granting of access remains the owner’s responsibility and trespass 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.
Yes. There are four other principal agencies with authority on rivers, including wild and scenic rivers, in the United States. The EPA has authority to protect water quality; the Army Corps of Engineers (ACOE) has jurisdiction for water resources projects; the U.S. Coast Guard (USCG) has jurisdiction on inland navigable waters, vessel inspecting and licensing, safety and boating enforcement, aids to navigation, and permitting of bridges; and the Federal Energy Regulatory Commission (FERC) has authority to license the construction of hydroelectric projects.
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.
Most current uses and activities on rivers and adjoining federal lands may continue. Of primary consideration in any river or land-use limitation is the protection and enhancement of the free-flowing condition, water quality, and outstandingly remarkable value(s) that resulted in the river’s designation. Those uses that clearly threaten these values will be addressed in the planning process, or through site-specific environmental analyses on a case-by-case basis where federal lands are involved.
It is important to develop and apply standardized criteria through a documented evaluation process that may include a screening for potential wild and scenic rivers. If there doubt, evaluate the river according to the criteria in the Wild & Scenic Rivers Act, i.e., free-flowing condition and outstandingly remarkable values.
Most rivers have flexible boundaries to accommodate specific features and river values. (Refer to Establishment of Wild and Scenic River Boundaries (1998).)
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)).
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. However, the federal land administering agency must protect wild and scenic river values on federal lands.
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.
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...
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 government typically provides technical assistance to find ways to alleviate or mitigate the actual or potential threat(s). Purchasing a partial right (easement) or the property in fee title is usually the last resort. If an easement is purchased, the owner would sell certain development rights and receive a payment, yet retain title to the land.
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...
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”...
These facilities will be provided if they are consistent with the management plan for each river and if funds are available.
Through the various federal agencies’ land management planning processes and initiatives by the public, a significant number of rivers have been identified for study as potential additions to the National Wild & Scenic Rivers System. For example, the Nationwide Rivers Inventory (NRI), maintained by the National Park Service, has identified over 3,400 river segments as potential candidates for study and/or inclusion into the National System.
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...
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).
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. 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...
No, not unless necessary to protect public safety, the river’s water quality, or other resource values. Recreational use of our nation’s rivers is increasing in both magnitude and extent, i.e., the types of recreational activities pursued and the technologies being used. Whether and how to restrict recreational use is a key issue in the planning process, which includes extensive local, regional, and national public involvement.
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.
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...
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...
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.
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...
Under Section 5(a), Congress directs that a study be conducted on identified river segments (usually within three years). The designated federal agency conducts a study and subsequently reports its findings through the appropriate Secretary. As a general rule, where joint agency jurisdictions are involved, the cooperating agencies coordinate their efforts prior to making recommendations or submitting reports.
Under Section 5(d)(1), federal agencies are directed to identify and evaluate potential additions to the National Wild & Scenic Rivers System through agency...
As provided in Sections 4(a) and 5(c) of the Wild & Scenic Rivers Act, the following factors should be considered and, as appropriate, documented as a basis for the suitability determination for each river.
- Characteristics which do or do not make the area a worthy addition to the National Wild & Scenic Rivers System. These characteristics are described in the Wild & Scenic Rivers Act (see factors 2 through 7) and may include additional suitability factors (8 through 13).
- The current status of land ownership and use in the area.
- The...
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.
Differences include, but are not limited to, the following areas:
- Motorized boats and other motors may be allowed in wild and scenic rivers classified as wild, whereas the administering Secretary has the discretion to continue the use of motorized boats and airplane landings in wilderness where such uses are traditionally established. In areas that are both a wild and scenic river and wilderness, the most restrictive provisions of the two acts apply, subject to any area-specific legislative language.
- New dams are prohibited in wild and scenic rivers. The...
Yes. Congress and the Secretary of the Interior have designated many river segments which are above or below dams that have regulated flows.
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.
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...
For 5(a) studies, the study report, planning document and combined National Environmental Policy Act (NEPA) analysis are submitted to the agency head for review and subsequent transmittal to Congress, which decides the final disposition of the river.
For 5(d)(1) studies, the study report and combined NEPA analysis (if conducted as a separate study), or study report prepared from the underlying land management plan, are submitted through the study agency and its respective department for review. The final study report is transmitted by the appropriate Secretary to Congress, which...