Wild and Scenic Rivers: Designation, Management, and Funding
Released: 2019-08-28T00:00:00

Introduction

Congress established the National Wild and Scenic Rivers System (NWSRS) in 1968 through the Wild and Scenic Rivers Act (WSRA). The WSRA established a policy of preserving designated free-flowing rivers for the benefit and enjoyment of present and future generations. It also complemented the then-current national policy of constructing dams and other structures that altered flow along many rivers. Designated rivers usually are referred to as wild and scenic rivers (WSRs). The WSRA established three classes of WSRs, reflecting the characteristics of a river at the time of designation and affecting the type and amount of development that may be allowed afterward:

W ild rivers are free from impoundments (dams, diversions, and so forth) and generally inaccessible except by trail. The watersheds are primitive, and the shorelines are essentially undeveloped. Scenic rivers are free from impoundments and in generally undeveloped areas but are accessible in places by roads. Recreational rivers are readily accessible by road, with some shoreline development, and may have been subject to some impoundment or diversion in the past.

At the passage of the WSRA in 1968, Congress initially designated 789 miles in eight rivers as part of the NWSRS and began to expand the system in 1972; since then, every Congress has added rivers. Altogether, the system now includes 226 river units comprising over 13,400 miles in 41 states and the Commonwealth of Puerto Rico.

Congress plays an ongoing role in shaping the NWSRS through legislation and oversight. Congress establishes new WSRs within the system, directs the Administration to study potential WSRs, and determines the level of agency funding for WSR administration. For individual WSRs, Congress has made specific provisions concerning river management, land acquisition and use in river corridors, and other matters. Ongoing issues for Congress include whether to designate additional WSRs, how to address local and federal roles on nonfederal river segments, and more.

Designation and Study

Rivers may come into the NWSRS either by congressional designation or by state nomination to the Secretary of the Interior. In some cases, prior to adding a river to the system, Congress first directs in legislation that a study be conducted to determine whether the river area is suitable for wild and scenic designation. Congress also has directed the Secretaries of Agriculture and the Interior to evaluate rivers for inclusion in the NWSRS through agency planning processes. Congress may designate rivers as part of the system without first requiring a study.

The Secretary of the Interior or Agriculture, as appropriate, is responsible for conducting authorized studies and reporting to the President on the suitability of a proposed addition. The President in turn submits recommendations to Congress. The act states that the studies are to discuss, among other things,

the "outstandingly remarkable values" (ORVs) that make the area worthy or unworthy of addition to the system; current land ownership and use; potential future uses of the land and water that could be affected by addition to the system; the federal agency that would administer the area; the cost of acquiring the land, if applicable; and the extent to which management costs would be shared by state and local agencies.

The act also directs the administering agency to determine which river classificationâwild, scenic, or recreationalâbest fits the designated river segments. However, Congress may preclude the need for these agency determinations by specifying particular classifications in law.

Although Congress designates most rivers, the Secretary of the Interior also may add WSRs to the NWSRS through administrative action. A state-nominated river may be added to the national system if the river is designated for protection under state law, approved by the Secretary of the Interior, and permanently administered by a state agency (see " State-Administered Wild and Scenic Rivers " for further information). A minority of wild and scenic river designations have been made in this manner.

The WSRA affords rivers designated by Congress for study (known as study rivers ) the same protections as designated rivers (see " Agency Role After Designation ," below). These protections last through the study process and extend to a three-year period following the transmittal of the final study report by the President to Congress. The act does not protect rivers studied through an agency's planning process, although the agency may use other authorities to protect attributes such as free flow or ORVs.

Agency Role After Designation

After Congress designates a river segment as a WSR, the segment falls under the jurisdiction of one of the four major federal land management agencies. The agency's role depends on the ownership of the land through which the river flows. If the river flows through federal lands (wholly or in part), the agency of jurisdiction manages the river as part of its overall land management activities. The National Park Service (NPS) acts as the federal administrator for rivers entirely on nonfederal lands. For these rivers, NPS may provide technical and financial assistance to relevant jurisdictions; it also ensures compliance with Section 7 of the WSRA, which prohibits certain water resources projects that would adversely affect the values for which the rivers were established (see " Water Resources Projects: Section 7 ," below). The WSRA authorizes or prohibits certain activities for all WSRs. However, management of WSRs differs based on the lands where individual rivers lie and other factors.

Various federal agencies administer rivers in the NWSRS designated by Congress. Typically, Congress specifies that either the Secretary of Agriculture or the Secretary of the Interior administer newly designated WSRs. The designated Secretary then administers the river through one of the four federal land management agenciesâthe Bureau of Land Management (BLM), NPS, or U.S. Fish and Wildlife Service (FWS) within the Department of the Interior or the Forest Service (FS) within the Department of Agriculture. Unless otherwise specified by Congress, rivers administered by the Secretary of the Interior and managed by NPS become part of the National Park System, and those managed by FWS become part of the National Wildlife Refuge System.

Following designation, the agency prepares a management plan (often called a comprehensive resource management plan , or CRMP) for the designated segment. The CRMP is to "provide for the protection of the river values" by addressing issues such as development of lands and facilities, user capacities, and other management practices. By law, CRMPs must address

resource protection, development of lands and facilities, user capacities, and other management practices necessary or desirable to achieve the purposes of the WSRA.

Agencies sometimes provide more specific direction regarding CRMP components. For example, in addition to the components listed, BLM specifies that CRMPs should describe existing resource conditions, including detailed descriptions of ORVs; define the goals for protecting river values and the desired condition of the river; address water quality and instream flow; identify resources requiring compliance with other authorities; identify regulatory authorities of other agencies that relate to river values; and describe a river monitoring strategy.

CRMPs generally are to be completed within three fiscal years after the date of a river's designation. There is no statutory requirement that CRMPs be updated. In some river study authorizations, Congress has required the study agency to develop a CRMP in concert with the study process. In some cases, Congress has adopted these CRMPs in the legislation designating the river. Agencies have sometimes developed elements of the CRMP while studying the river, even if not directed by Congress to do so.

The agency determines the boundaries of areas along the designated river. The land area included may not exceed an average of 320 acres per mile of river designated (an average quarter-mile-wide corridor of land on each side of the river) or 640 acres per mile in Alaska (an average half-mile-wide corridor of land on each side of the river).

General Management

Rivers are administered to protect and enhance the values for which the rivers were included in the NWSRS (usually interpreted as being the rivers' ORVs). Congress directed that the agencies give primary emphasis to protecting aesthetic, scenic, historic, archaeological, and scientific features of designated rivers. Congress also directs that other land uses not be limited unless they "substantially interfere with public use and enjoyment of these values." The WSRA prohibits water resource projects, such as dams, if they would have a "direct and adverse effect" on the values for which the river was designated (see " Water Resources Projects: Section 7 " below, for further discussion).

Management of lands within wild and scenic corridors varies with the class of the designated river, the values for which the river was included in the system, the managing agency, and land ownership in the river corridor. Generally, agencies manage wild rivers with the highest level of restrictions in terms of development and water resource use, scenic rivers with an intermediate level of restrictions, and recreational rivers with the lowest level of restrictions.

Minerals

The WSRA withdraws federal lands within the boundaries of wild WSRs from appropriation under the mining and mineral leasing laws. No new mining claims or leases can be granted on these lands. Existing valid claims or leases within the designated WSR boundary remain in effect, and activities may be allowed subject to regulations designed to protect river values (for example, regulations that minimize sediment, discharge, or visual impacts). NPS and FWS generally prohibit mineral development on their lands; thus, the mineral collection provisions of the WSRA generally only affect activity on FS and BLM lands.

The WSRA does not withdraw federal lands within the boundaries of scenic or recreational WSRs from the mining and mineral leasing laws. Filing of new claims and leases is permitted to the extent allowed by other laws and policies governing the land. Existing valid claims or leases within the designated WSR boundary remain in effect, and activities may be allowed, subject to regulations that minimize surface disturbance, water sedimentation, pollution, and visual impairment. Reasonable access to mining claims and mineral leases is permitted.

Water Resources Projects: Section 7

Section 7 of the WSRA prohibits federally licensed or assisted water resources projects, such as dams and reservoirs, that would have a "direct and adverse" effect on the values for which the river was established. Outside the designated segments (such as upstream, downstream, or on a tributary), the WSRA prohibits projects that would "invade â¦ or unreasonably diminish" the segment's fish, wildlife, scenic, or recreational resources. The WSRA also explicitly prohibits the Federal Energy Regulatory Commission from licensing any new dam, water conduit, reservoir, powerhouse, transmission line, or other project on or directly affecting a designated river segment. These prohibitions often are referred to as Section 7 or Section 7(a ) prohibitions.

Each managing agency is responsible for determining the impact of a proposed federal or federally assisted water resources project on rivers it administers. NPS is responsible for the implementation of Section 7 on partnership WSRs (see " Partnership Wild and Scenic Rivers "), regardless of the degree to which the agency shares other management functions, and on state-managed WSRs. Â The determination usually focuses on impacts to identified ORVs and free-flowing condition; it may include analysis of impacts to water quality, upland conditions (such as vegetation and soils), or other values. The baseline for evaluating impacts is the resource condition on the date of designation. If conditions have improved since that date, some agencies specify that Section 7 determinations be based upon the improved condition.

WSRs on Federal Lands

In addition to the statutory direction discussed above, management of WSRs on federal lands differs based on the statutory management criteria for each agency's lands. FS and BLM manage their lands for a sustained yield of multiple uses. NPS manages the National Park System under a dual mission: to preserve unique resources and to provide for their enjoyment by the public. FWS manages the National Wildlife Refuge System (NWRS) under a dominant mission to conserve plants and animals for the benefit of future and present generations. These varying missions shape the management decisions the federal land management agencies make regarding WSRs on their lands.

Forest Service and Bureau of Land Management

WSRs managed by FS and BLM are subject to the provisions of the WSRA and any provisions under which the agencies administer the national forests (for FS) or public lands (for BLM). FS and BLM manage their lands for a sustained yield of multiple uses, including (but not limited to) grazing, timber harvesting, energy and mineral development, fish and wildlife habitat, and recreation. Thus, FS and BLM management of WSRs addresses how lands in or surrounding the WSR corridor may be used. As discussed above, management also varies with the class of the designated river and the values for which it was included in the system.

In accordance with the WSRA, FS and BLM create CRMPs for each river after designation; these plans establish management objectives for the river. Agency guidance (such as policy manuals and handbooks) may specify that certain activities be governed by the CRMP. For example, FS policy states that activities such as insect, disease, and invasive species treatment; transportation systems (such as roads, trails, and airfields); and recreation (among others) be managed in accordance with the CRMP for each river.

In other cases, the agencies have given directions regarding various activities for their WSRs more broadly. Both agencies do not generally allow timber harvesting, road building, and structures and improvements (such as campgrounds, boat launches, and administrative sites) in wild river corridors. Both agencies allow more development in scenic and recreational rivers corridors. FS prohibits motorized travel in wild river corridors. BLM discourages new rights-of-way and utility corridors in all WSR areas. Both agencies allow for continued grazing and wildfire management, including through prescribed fire, in WSR areas. FS and BLM manage wildfire, pests, insects, and disease in ways compatible with adjacent lands outside the river corridor.

Fish and Wildlife Service

Rivers managed by the Secretary of the Interior through FWS become part of the NWRS. FWS manages the NWRS under a dominant mission to conserve plants and animals for the benefit of future and present generations. WSRs managed by FWS are subject to the provisions of the WSRA and any provisions under which the NWRS is administered. In the case of any conflict between these authorities, the more restrictive provisions apply. FWS does not otherwise have specific policy or other guidance regarding management of WSRs.

National Park Service

Rivers managed by the Secretary of the Interior through NPS become part of the National Park System. NPS manages the National Park System under a dual mission: to preserve unique resources and to provide for their enjoyment by the public. NPS-managed WSRs are subject to the provisions of the WSRA and any provisions under which the National Park System and the specific units are administered. In the case of any conflict between these authorities, the more restrictive provisions apply.

Wild and Scenic Rivers on Nonfederal Lands

WSRs need not flow entirely through federal land. WSRs on nonfederal lands differ based on whether they were designated by Congress or through an administrative process. WSRs designated by Congress may flow wholly through nonfederal land or may have segments on nonfederal land. WSRs on nonfederal land managed at the state, county, or other nonfederal level, and usually congressionally designated, are referred to colloquially as partnership wild and scenic rivers (or partnership WSRs).

WSRs also may be designated through an administrative process. States may apply to the Secretary of the Interior for inclusion of a state-protected river in the NWSRS. The relevant state administers WSRs added to the system in this way. These WSRs, as well as those that contain both federal and nonfederal land, generally are not referred to as partnership WSRs.

Partnership Wild and Scenic Rivers

The WSRA does not define the term partnership WSRs ; rather, it is an umbrella term used to refer to WSRs with certain similar features. NPS administers all WSRs with these features. In general terms, common features of partnership WSRs are as follows:

Lands are not federally owned, and federal ownership is not authorized in legislation. The river management plan is created at the local level and often locally approved prior to designation. NPS may provide technical assistance. A local organization, often open or broadly participatory in nature (called a council , committee , or other term), oversees implementation of the management plan. These organizations may receive technical assistance from NPS. Overall administration is the responsibility of NPS, but land use and management are governed by authorities at the relevant nonfederal level (e.g., township zoning ordinances). Costs of managing and protecting the WSR are shared but generally include some federal support (see " Funding ," below). Partnership WSRs usually are congressionally designated, although exceptions exist. For example, NPS refers to the Westfield River as a partnership WSR, but its designation occurred through state nomination.

The WSRA does not describe these features, aside from local jurisdiction over land use. These features have been codified in individual river study legislation or designating legislation or have developed locally during the study or designation process. Because the WSRA does not define the term partnership WSRs , not all partnership WSRs have all of these characteristics and not all WSRs with some of these characteristics are referred to in this way.

As with WSRs generally, Congress typically designates partnership WSRs following a congressionally authorized study. Studies on partnership WSRs often are similar to studies of WSRs generally, including identifying ORVs meriting protection (see " Designation "), though Congress sometimes specifies matters studies must address.

Partnership WSR studies also may identify existing forms of protection in the river corridor, such as local zoning laws, and additional options to confer protection within local jurisdictions (such as laws regarding vegetative cutting, sand and gravel removal, placement of new structures and septic systems, and others). In some cases, local governments have chosen to strengthen land use requirements during a WSR study (for example, by passing certain zoning ordinances) to demonstrate the adequacy of local protections prior to requesting congressional designation. Congress has prohibited condemnation in WSR corridors in urban areas with adequate zoning ordinances; therefore, strengthened land use requirements may protect against condemnation in certain areas, strengthen the case for designation, or contribute to other goals.

During the WSR study, stakeholders may develop a river management plan, sometimes using NPS technical assistance and funding. Congress may identify such plans as satisfying the CRMP requirements of the WSRA in designating legislation.

Although not required under the WSRA, NPS administers all partnership WSRs. Congress sometimes has specified which relevant local jurisdictions, such as states and towns, manage designated partnership WSRs through cooperative agreements. To date, locally based river management councils or committees have been formed on each partnership river specifically for this purpose. Congress may specify the role of management councils or similar local organizations in individual river designating legislation, in written agreements authorized by the river's designating legislation, or both.

A WSR designation on nonfederal land does not transfer ownership to the federal government; relevant local authorities and jurisdictions continue to govern land use and management of these rivers. After designation, partnership WSRs are managed according to the established CRMP. Local jurisdictions (e.g., the relevant county, township, or city, as appropriate) generally make laws that implement the CRMP, such as land use restrictions and zoning laws, and carry out management actions. The WSRA authorizes federal agencies to enter into cooperative agreements with state and local governments for administering a river area, and NPS may provide technical or financial assistance for managing river resources. NPS remains responsible for implementing Section 7 reviews of proposed water resources projects (see " Water Resources Projects: Section 7 ").

State-Administered Wild and Scenic Rivers

Although Congress designates most rivers, the Secretary of the Interior also can add WSRs to the NWSRS by administrative action. A state desiring WSR designation for a river on nonfederal lands must establish permanent river protections compatible with the WSRA. The state may then apply to the Secretary of the Interior to approve inclusion of the river in the NWSRS. The Secretary of the Interior typically directs NPS to evaluate whether the provisions of the WSRA have been fulfilledâincluding whether adequate protections are in place, whether the river is in free-flowing condition, and whether it possesses at least one ORV. If the NPS determines that the application meets the requirements and the Secretary of the Interior concurs, the river is added to the NWSRS.

Rivers designated administratively have protections identical to rivers designated by Congress. The WSRA precludes federal management of such rivers; thus, state or local agencies manage WSRAs designated this way. (Although these rivers sometimes are called state-administered rivers, they need not necessarily be administered by states.) The federal government may not provide funding for state-administered WSRs and may not condemn or acquire lands in the river corridor. NPS reviews proposed water resource projects (see " Water Resources Projects: Section 7 ").

Segments on Nonfederal Lands

Congress may designate WSRs with segments on federal and nonfederal land (for example, Congress could designate a river that begins on FS lands and flows onto private lands). Management of nonfederal segments of these rivers varies, depending on what provisions Congress includes in designating legislation. For example, Congress may specify that nonfederal segments are to be managed by state, county, local, or other nonfederal elements. Some of these rivers are managed through cooperative agreements; in other cases, Congress has specified objectives for nonfederal elements. In still other cases, Congress has not specified how nonfederal areas are to be managed.

Funding

For rivers administered by the four federal land management agencies, Congress provides funds for operations and maintenance through annual congressional appropriations for the relevant agencies. Each agency approaches river management differently in its budget. Rivers administered exclusively by states typically do not receive federal funding for river administration.

The WSRA authorizes federal agencies to assist states and their political subdivisions (such as counties, townships, and others), landowners, organizations, or individuals in planning, protecting, and managing WSRs; this provision includes financial and technical assistance, except in the case of administratively designated WSRs. NPS administers partnership WSRs and provides technical and financial assistance to manage these rivers.

National Park Service

Funding for WSRs administered by the NPS depends on the designated river's location. NPS WSRs that are part of another National Park System unit are funded through appropriations for that individual unit. A few WSRs are stand-alone units of the National Park System and receive their own line-item appropriations. The National Park Service budget also contains separate line items for the partnership WSRs. Funding for WSRs listed individually in the NPS budget, as well as for overall program administration over the past five years, appears in Table 1 .

Bureau of Land Management, Forest Service, and Fish and Wildlife Service

BLM lists the total annual amount enacted for WSRs in the "Cross-Cutting Programs" section of its budget justification, shown below in Table 2 .

FS, in its "Recreation, Heritage, and Wilderness" budget activity, includes a combined line item for management of wild and scenic rivers and wilderness areas; it does not report a distinct figure for WSRs. Similarly, FWS does not report a distinct figure for WSRs but incorporates WSR funding into its broader "National Wildlife Refuge System" budget activity.

Issues for Congress

WSR designation has been controversial in some cases, especially for WSRs containing nonfederal lands. Initially, Congress primarily designated rivers on federal land and rivers on nonfederal land were primarily added to the NWSRS through the state nomination authority. However, the state nomination authority has not been used since 2004, and Congress has designated all WSRs (on federal and nonfederal land) since that time. Congress also has increasingly authorized river studies on nonfederal lands. With this increase in congressional studies and designations of nonfederal lands, concern has centered on local control of relevant lands, including potential for federal acquisition of newly designated lands.

The potential use of condemnation authority to acquire lands on partnership WSRs has been particularly contentious. The WSRA limits the federal government's condemnation powers for some but not all river areas. According to the Interagency Wild and Scenic Rivers Council, the federal government has rarely used condemnation authority in respect to WSRs, and nearly all uses of condemnation occurred in the early years of the WSRA. Congress has sometimes prohibited the use of condemnation in designating legislation for individual river segments.

Opinions regarding the balance of federal and local control over partnership WSRs have varied. Some stakeholders contend that the current partnership WSR model is successful. Others have expressed concern that provisions of WSR designation legislationâfor example, that partnership WSRs are to be administered as part of the National Park System unless otherwise specifiedâmay lead to an undesirable loss of local control. Still other observers have expressed concern that local laws may not adequately protect partnership WSRs. As discussed previously, the attributes of each partnership WSR are created separately by individual designating laws or by local and federal agency choices before or after designationâas opposed to stemming from a defined category in the WSRA. Thus, it may be unclear whether these concerns are broadly applicable. Congress and NPS have used varying methods to address concerns about local versus federal control of partnership WSRs and about adequate levels of protection for partnership WSRs, either in individual designating legislation or in agency action prior to or after designation.

In contrast to the partnership WSR model, the state-nominated process for designating WSRs consists of a fixed set of provisions. The process affords rivers the same protection as congressionally designated WSRs but precludes federal management or land acquisition (including by condemnation), and the state must demonstrate that adequate legal protections are in place prior to designation. Some have observed that Congress intended the state nomination authority to be the primary means for nonfederal river segments to be included in the system and that Congress envisioned the states taking a prominent role in developing the NWSRS. Prior to the 2000s, most nonfederal river segments were designated under the state nomination authority. However, this designation method has not been used since 2004; costs of designation and management at the state level, and state and local politics, may have contributed to this decline. Congress may consider whether it is preferable to encourage use of the state-nominated process, which includes a set of fixed provisions, or to continue to establish partnership WSRs though individual designating statutes, whose provisions vary.