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.
Yes. The “equal footing” principle of the Constitution and the Submerged Lands Act of 1953 afford each state the ownership of lands and natural resources under navigable rivers. These submerged lands generally extend from bank-to-bank or to the mean or ordinary high water mark.
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 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...
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.
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...
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...
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...
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).
Wild and scenic river designation seeks to protect and enhance a river’s current condition. Generally, the classification of the river reflects the level of development at the time of designation, and future development levels must be compatible with such classification. Any proposed new developments on federal lands must be guided by land use and resource management objectives that are compatible with the river’s classification.
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...
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...
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...
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...
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...
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...
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.
Most rivers have flexible boundaries to accommodate specific features and river values. (Refer to Establishment of Wild and Scenic River Boundaries (1998).)
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.
Yes. Such projects may be constructed to protect and enhance fish and wildlife. In-channel structures (e.g., placement of large wood to replicate natural stream conditions) and in-channel activities (e.g., dredging to protect listed species) are acceptable, provided they do not have a direct and adverse effect on the values of the river (its free-flowing condition, water quality, and outstandingly remarkable values. Similarly, in-channel habitat projects may also be constructed below/above a designated river so long as they do not unreasonably diminish the scenic, recreational, and fish...
Rivers included in the National Wild & Scenic Rivers System by act of Congress (under Section 3(a) of the Wild & Scenic Rivers Act) are administered by one of four federal agencies: Bureau of Land Management (BLM), National Park Service (NPS), U.S. Forest Service (USFS), and/or U.S. Fish & Wildlife Service (FWS) as specified in the legislation. Rivers included in the National Wild & Scenic Rivers System at the request of a governor and designated by the Secretary of the Interior (under Section 2(a)(ii) of the Wild & Scenic Rivers Act) are administered by the respective...
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.
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.
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.
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...
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...
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.
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...
Timber management activities on federal lands within wild and scenic river corridors must be designed to help achieve land-management objectives consistent with the protection and enhancement of the values that caused the river to be added to the National Wild & Scenic Rivers System. Management direction needed to protect and enhance the river’s values is developed through the river planning process. Wild and scenic river designation is not likely to significantly affect timber management activities beyond existing measures to protect riparian zones, wetlands, and other resource values...
Yes. The ability of the owner to buy, sell, donate, or leave property to heirs is unaffected by the Wild & Scenic Rivers Act. Landowners who sell should inform the new owner of any easement transferred with the title.
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.
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...
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.
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...
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.
To be eligible for designation, a river must be free-flowing and contain at least one "outstandingly remarkable value," i.e., scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar value.
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.
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, 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...
(*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...
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.