Order Code RL30809
Report for Congress
Received through the CRS Web
The Wild and Scenic Rivers Act
and Federal Water Rights
January 18, 2001
Pamela Baldwin
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress
The Wild and Scenic Rivers Act
and Federal Water Rights
Summary
During the 1960's, support grew for the idea that the development of our
nation’s rivers needed to be balanced by some means of protecting for future
generations certain rivers that possessed outstanding undeveloped qualities. These
sentiments culminated in the enactment of the Wild and Scenic Rivers Act of 1968.
Rivers may be designated for protection by Congress or, in some cases, be nominated
for inclusion by a Governor and approved by the Secretary of the Interior. The Act
addresses the protection of the water flows of designated rivers, both expressly and
by implication. This report examines the purposes, language, and legislative history
of the Act in order to analyze its effects on federal and state water rights. It will be
updated as circumstances warrant.
The Act declares it to be the policy of the United States that certain rivers that
possess outstanding values shall be preserved in “free-flowing condition,” and that it
is the purpose of the Act to implement that policy. The Act contains several
paragraphs on water rights, stating that the jurisdiction of the states and United States
over waters shall be determined by established principles of law; that any taking of
water rights shall entitle the owner to just compensation; that the jurisdiction of the
states over waters is unaffected by the Act to the extent that such jurisdiction may be
exercised without impairing the purposes of the Act or its administration; and that the
Act shall not be construed to alter interstate compacts.
The Act also indicates (albeit by reverse implication) the availability of federal
water rights necessary to accomplish the purposes of the Act:
Designation of any stream or portion thereof as a national wild, scenic or
recreational river area shall not be construed as a reservation of the waters of such
streams for purposes other than those specified in this chapter, or in quantities
greater than necessary to accomplish these purposes.
This report discusses federal authority over water, and federal “reserved” and
non-reserved water rights. Based on the language of the Act and its legislative
history, we conclude that the Act may be interpreted as giving rise to federal water
rights. The Act does not specify the quantity of the right. The amount of the federal
right is likely to vary from river to river depending on the river’s flows, the
unappropriated flows in the river at the time of designation, and the values for which
the river is being protected. In practice, federal reserved water rights have not always
been claimed if alternative means are adequate. Necessary water flows are sometimes
secured under state law, through cooperative agreements, and by purchases from
willing sellers.
Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Federal Authority Over Water . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Water Rights under the Wild and Scenic Rivers Act . . . . . . . . . . . . . . . . . . . . . . 3
Background and Statutory Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Legislative History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
WSRA Water Rights in Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Discussion and Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
The Wild and Scenic Rivers Act
and Federal Water Rights
Background
During the 1960's, support grew for the idea that the natural tendency toward
development of our nation’s rivers needed to be balanced by some means of
protecting for future generations certain rivers that possessed outstanding
undeveloped qualities. These sentiments culminated in the enactment of the Wild and
Scenic Rivers Act of 1968 (WSRA).1 Rivers may be designated by Congress, or, in
some instances, be nominated by a Governor and approved by the Secretary of the
Interior. Designation provides certain protections from development and from the
adverse effects of water resources projects.
Section 1 of the Act declares it to be the policy of the United States that certain
rivers that possess “outstandingly remarkable scenic, recreational, geologic, fish and
wildlife, historic, cultural, or other similar values, shall be preserved in free-flowing
condition,” and that the established national policy of dam and other construction be
complemented by a policy that would preserve other selected rivers or sections “in
their free-flowing condition to protect the water quality of such rivers and to fulfill
other vital national conservation purposes.” Section 2 of the Act states that it is the
purpose of the Act to implement the policy set out in section 1.
The Act establishes three categories of rivers: wild, scenic, and recreational. A
river will be classified as one of these categories depending on its characteristics and
values at the time of designation and the desired level of protection. Rivers in the
Wild and Scenic River System are managed by various federal agencies.2 “River” and
“free-flowing” are defined in 16 U.S.C. § 1286:
“River” means a flowing body of water or estuary or section, portion,
or tributary thereof, including rivers, streams, creeks, runs, kills, rills,
and small lakes.
“Free-flowing,” as applied to any river or section of a river, means
existing or flowing in natural condition without impoundment,
diversion, straightening, rip-rapping, or other modification of the
waterway. The existence, however, of low dams, diversion works, and
other minor structures at the time any river is proposed for inclusion in
the national wild and scenic rivers system shall not automatically bar
1Pub. L. No 90-542, 82 Stat. 906, codified at 16 U.S.C. §§ 1271 et seq.
2The National Park Service, the Bureau of Land Management, the Forest Service, and the Fish
and Wildlife Service all manage designated rivers.
CRS-2
its consideration for such inclusion: Provided, That this shall not be
construed to authorize, intend, or encourage future construction of such
structures within components of the national wild and scenic rivers
system.
The Act provides protection for a designated river or segment by limiting the
licensing of dams, reservoirs and other water project works on, or adversely affecting,
protected segments. As to the most vital protection of all, the protection of the flow
of the river, the statute is convoluted, but appears to create federal water rights
sufficient to carry out the purposes of the Act. Section 13, codified at 16 U.S.C. §
1284 states:
*
*
*
(b) The jurisdiction of the States and the United States over waters of
any stream included in a national wild, scenic, or recreation river area
shall be determined by established principles of law. Under the
provisions of this chapter, any taking by the United States of a water
right which is vested under either State or Federal law at the time such
river is included in the national wild and scenic rivers system shall
entitle the owner thereof to just compensation. Nothing in this chapter
shall constitute an express or implied claim or denial on the part of the
Federal government as to exemption from State water laws.
(c) Designation of any stream or portion thereof as a national wild,
scenic, or recreational river area shall not be construed as a reservation
of the waters of such streams for purposes other than those specified
in this chapter, or in quantities greater than necessary to accomplish
these purposes.
(d) The jurisdiction of the States over waters of any stream included in
a national wild, scenic, or recreational river area shall be unaffected by
this chapter to the extent that such jurisdiction may be exercised
without impairing the purposes of this chapter or its administration.
(e) Nothing contained in this chapter shall be construed to alter, amend,
repeal, interpret, modify, or be in conflict with any interstate compact
made by any States which contain any portion of the national wild and
scenic rivers systems.
The interpretation of this language, its legislative history, and the import for
management of wild and scenic rivers will be discussed.
Federal Authority Over Water
Congress derives authority to regulate water from several constitutional sources,
among them the commerce power (including the navigation power), the spending
CRS-3
power, the war power, the treaty power and the property power.3 Furthermore,
under the “Supremacy Clause,” (art. VI, cl. 2) of the Constitution, when the federal
government exercises legitimate authority, the federal law may preempt state law.4
However, the point at which federal legislation preempts state law is not always clear.
The Supreme Court has recognized the federal power to regulate water under
various constitutional powers and resultant statutes. For example, pursuant to the
“Commerce Clause” (art. I, § 8, cl.2) in general, Congress may regulate water and
water use, and, pursuant to the authority to regulate navigation, may even abrogate
state sanctioned water rights without paying compensation.5 Also, the authority for
Congress to tax and spend for the general welfare has been said to provide the federal
government a range of powers similar to the police power of states to further the
public health, safety, and welfare.6 This clause may provide a source of authority for
the imposition of federal directives as to water use in association with the protection
of a river.
Considering too that the Act provides for the acquisition of lands by the federal
government in the river corridor, another source of constitutional authority for the
Wild and Scenic Rivers Act is the “Property Clause” (art. IV, § 3, cl. 2), which
authorizes Congress to make “needful rules and regulations” regarding federal
property.
Water Rights under the Wild and Scenic Rivers Act
Background and Statutory Language
Although Congress has repeatedly deferred to state law in the area of regulation
of water use,7 and a court is likely to be cautious in concluding that a federal water
right is created, whether reserved or non-reserved, the power of the federal
government to do so cannot be denied. Therefore, the critical factor is whether
Congress intended that such rights be created, as indicated either by express language,
or by implication from a congressional purpose, reservation, or directive for which
water is necessary. A court will derive evidence of that intent from the language of
the statute in question, its purposes, and, on points as to which there is any ambiguity,
its legislative history.
The purpose of the Wild and Scenic Rivers Act is stated as being to implement
the policy set out in section one of the Act – to preserve rivers “in free-flowing
condition to protect the water quality of such rivers and to fulfill other vital national
3See, 2 WATERS AND WATER RIGHTS, R.E. Clark, editor, at 4 (1967).
4Gibbons v. Ogden, 9 Wheat. (922 U.S.) 1, 210-211 (1824). See Hill v. Florida ex rel.
Watson, 325 U.S. 538 (1945); Nash v. Florida Industrial Comm. 389 U.S. 235 (1967); Lee
v. Florida, 392 U.S. 378 (1968); Perez v. Campbell, 402 U.S. 637 (1971).
54 WATER AND WATER RIGHTS 122-160 (Robert E. Beck, Editor-in-Chief, 1996 ed.)
6Id., at 164-168.
7See United States v. New Mexico, 438 U.S. 696, n.5 at 702 (1978).
CRS-4
conservation purposes.” “Free-flowing” is defined as “existing or flowing in natural
condition without impoundment, diversion, straightening, rip-rapping, or other
modification of the waterway. . . .”Considering the purpose of the Act, it seems likely
that Congress intended to create a federal right to some or all of the instream flows
of designated rivers or river segments.
This conclusion is reinforced by the express, though negatively stated, reference
to the creation of water rights in section 1284(c), that: “[d]esignation of any stream
or portion thereof as a national wild, scenic or recreational river area shall not be
construed as a reservation of the waters of such streams for purposes other than those
specified in this chapter, or in quantities greater than necessary to accomplish these
purposes.” (Emphasis added.)
The words “reserve” and “reservation” also appear in the few Supreme Court
cases relating to federal water rights. Although the nature and extent of federal
power over water generates perpetual debate, the Supreme Court has held that the
federal government may, at the least, “reserve” unappropriated water (water not
subject to a right vested under state law) for federal purposes from federal “public
domain” lands.8 This reservation may be express, but typically is inferred from the
Congressional purposes in reserving lands for some purpose. The federal right vests
and has a priority date as of the date of the reservation, whether or not the water is
put to immediate use. Hence, the federal right is senior to all rights vesting after that
date. A brief history and discussion of the elements of these rights follows.
“Public domain” lands are federal lands (primarily in the West), that were
obtained from a foreign sovereign rather than from a state or individual. These
western lands developed an “appropriation” system of water rights that contrasts with
the “riparian” rights systems of the eastern states – a system in which water rights
depend on ownership of the lands adjacent to the water source.9 As the original
owner of the public domain lands before states were created, the federal government
was vested originally with all proprietary and legislative authority predating the
authority of states that were subsequently created. Therefore, there could not be any
riparian owners for decades because the federal government was the only riparian
owner. For this reason, and because water sources in the arid West were scarce and
8Winters v. United States, 207 U.S. 564 (1908); Arizona v. California, 373 U.S. 546 (1963);
Cappaert v. United States, 426 U.S. 128 (1976); United States v. New Mexico, 438 U.S. 696
(1973).
9A discussion of the differences between appropriation and riparian systems of law is not
necessary for the purposes of this paper. It can be noted, however, that under the riparian
system, the right to use water is a right incident to the ownership of land that abuts the water
source. The right is usually said to be to make “reasonable use” of the waters, although these
uses may vary under state law. Each riparian owner has the same right, the right is not lost
through disuse, and all share in times of shortage. In contrast, in an appropriation state the
right to use water is not dependent on ownership of adjacent land, the right is for a particular
quantity and use, and may be lost through disuse. Holders of water rights are ranked as to
their entitlement with earliest users having “priority” over later users, such that the later users
may not receive water in times of drought.
CRS-5
water typically needed to be moved to be used, the new appropriation system of water
rights and priorities developed.
Historically, the public domain lands were available for entry and, ultimately, for
perfection of private ownership under the public land laws that applied during much
of our country’s history. However, the government could withdraw certain of the
lands from the operation of the disposal laws, and if such withdrawn lands were
dedicated to a particular purpose or purposes, the lands were said to be a
“reservation” – reserved for those purposes. As a factual happenstance, the cases to
date on federal water rights in general have involved public domain lands and
reservations created out of them.10
The Wild and Scenic Rivers Act speaks in terms of “reserved” water, yet also
provides for the designation of rivers located among non-public domain lands in the
East. Although the Art. IV property power speaks of the “Territory or other Property
belonging to the United States” and does not distinguish between public domain lands
and lands acquired from a state or individual, we know of no cases yet that required
a court to interpret the use of the word “reservation” in the WSRA as it applies to
rivers in non-public domain states. However, the Act also authorizes the acquisition
by the federal government of a certain amount of lands within a designated river
corridor. Therefore, federal property would adjoin a protected river. Perhaps a court
would articulate a federal right related to acquired lands in a federal enclave as a
“non-reserved” federal right to distinguish such right from the historical meaning of
the term “reserved.” Or perhaps “reserved” rights could be clarified to mean a federal
water right associated with a Congressional directive that federal lands, whether
public domain or acquired, be used for a particular purpose. Given the basic
constitutional authority of Congress to deal with property of the United States, the
choice of terminology used should not affect the otherwise clear intent to achieve
certain purposes. Therefore, it is likely that a court will treat the water rights
language in the Wild and Scenic Rivers Act as giving rise to water rights sufficient to
carry out the purposes of the federal reservations and enclaves created by the Act.
As an analysis by the Justice Department stated in speaking of the property power and
water:
It is important to understand that any water rights that may be asserted
by the federal government outside of state law–whether called reserved,
non-reserved or by some other name–rest on this same constitutional
basis. Thus, federal reserved rights are not a unique species of federal
rights that arise directly out of the reservation of federal lands, so that,
absent a reservation of land, no federal water rights can exist.11
10See too In re: SRBA Case No. 39576, 12 P.3d 1256, 2000 Ida. LEXIS 111 (Id. 2000) , in
which case the Idaho Supreme Court affirmed a lower court decision in the Snake River Basin
Adjudication holding that designation under the Wild and Scenic River Act gave rise to federal
reserved water rights in the amount necessary to fulfill the purposes of the Act.
11T. Olson, Memorandum for Assistant Attorney General, Land and Natural Resources
Division, June 16, 1982 at 48. The opinion concluded that federal land management statutes
probably do not suffice to infer Congressional intent to create federal water rights for general
(continued...)
CRS-6
The quantity of a WSRA federal water right appears to be the amount necessary
to achieve the purposes of the Act; here that would appear to be that amount
necessary to preserve the free-flowing condition of the river and to preserve the
values for which a river was protected.12 It is therefore arguable what quantity is
sufficient in each instance, and the protected amount may or may not be the full flow
the river. The definition of free-flowing would seem to argue that the full
unappropriated flow as of the time of designation (i.e., subject to those existing uses
and diversions that do not impair the purposes for which the river is being protected)
is protected. On the other hand, by referring to “necessary” water, § 1284(c) may
indicate that the amount of the federal right may be less than the full amount of water
available. In a river that is subject to heavy Spring flows, for example, the argument
might be made that the excess peak water flows could be impounded or diverted
upstream as long as sufficient flow was released to the protected segment to maintain
its associated fish, wildlife, and scenic values.
Section 1284(b) states that “established principles of law” apply to the respective
jurisdiction of the States and the United States over waters of streams included in the
system, and that “[n]othing in this chapter shall constitute an express or implied claim
or denial on the part of the federal government as to exemption from state water
laws.” This latter sentence seems ambiguous in view of the fact that the Act
apparently did create federal rights independent of state law. In light of this fact and
the legislative history as will be set out below, the best interpretation of this provision
seems to be that Congress was reiterating that it did not intend to expound a new
general position as to exemption from state water laws, but rather wanted the courts
to apply the usual principles–which would conclude that an exemption existed only
as necessary to accomplish the Congressional purposes. This reading is borne out by
subsection (d) that states that “[t]he jurisdiction of States over waters of any stream
included in a national wild, scenic or recreational river area shall be unaffected by this
chapter to the extent that such jurisdiction may be exercised without impairing the
purposes of this chapter or its administration.” Again, this provision has the converse
meaning that the traditional jurisdiction of states over waters is affected if its exercise
impairs the federal purpose.
11(...continued)
management purposes; and see the September 11, 1981 opinion of William H. Coldiron,
Solicitor, Department of the Interior, that there are no federal non-reserved water rights for
general management purposes.
12Congress apparently has spoken directly to instream water levels in other statues. At 710
of United States v. New Mexico, supra, the Supreme Court stated: “When it was Congress’
intent to maintain minimum instream flows within the confines of a national forest, it
expressly so directed, as it did in the case of the Lake Superior National Forest:
In order to preserve the shore lines, rapids, waterfalls,
beaches and other natural features of the region in an
unmodified state of nature, no further alteration of the
natural water level of any lake or stream. . . shall be
authorized. 16 U.S.C. 577b (1976 ed.).”
CRS-7
Lastly, section 1284(b) states that “[u]nder the provisions of this chapter, any
taking by the United States of a water right which is vested under either state or
federal law at the time such river is included in the national wild and scenic rivers
system shall entitle the owner thereof to just compensation.” In other words, if any
existing water right were ever condemned for federal purposes, compensation would
be paid. However, representatives of the Departments of the Interior and Agriculture
inform us that no water right has ever been condemned under WSRA.
To summarize, the WSRA appears on its face to protect designated rivers in a
free-flowing state by a “reservation” of the waters of such streams, necessary to carry
out the purposes of the Act, to affirm existing principles of law as to federal/state
authority over water, and to provide compensation for any taking of water rights that
were vested under state law.
Legislative History
Although it seems evident from the face of the statute that Congress intended to
create federal water rights, in view of the historical sensitivity of water rights issues
a court might nonetheless review the legislative history of the Act for confirmation,
clarification, or contradiction of that apparent intent. The legislative history might
also be examined for possible clarification of particular points such as the quantity of
the federal right. Different courts, however, give different weight to legislative
history. A court usually gives more weight to the committee reports and to floor
explanations by a bill’s sponsors or managers, than to the comments of any other
Member.
H.R. 18260 contained only brief language on water rights. Section 13(b) stated:
Nothing in this Act shall constitute an express or implied claim or
denial on the part of the United States with respect to the applicability
to it of, or to its exemption from state water laws, and nothing in this
Act shall be construed to alter, amend, or repeal any interstate water
compact which has heretofore been entered into by States which
contain any portion of the national scenic rivers system and to which
the consent or approval of the Congress has been given.
The committee report merely paraphrased this language with no additional
explanation,13 but also noted that H.R. 18260 was similar to a bill submitted by the
Department of Interior. Representative Aspinall, then chairman of the House
Committee on Interior and Insular Affairs, when asked about the effect of the
legislation on water rights acquired under state law quoted comments from the
Department of the Interior:
Enactment of the bill would not in any way affect or impair any valid
or existing water rights perfected under State law. In addition, further
appropriations could be made and water rights perfected under State
13H.R. Rep. No. 90-16 at 13 (1968).
CRS-8
law so long as the subsequent appropriations would not adversely
affect the designated rivers.14
As to the “reservation of water” created by the Act, Representative Aspinall
continued to quote the Department:
Enactment of the bill would reserve to the United States sufficient
appropriated water flowing through federal lands involved to
accomplish the purpose of the legislation. Specifically, only that
amount of water will be reserved which is reasonably necessary for the
preservation and protection of those features for which a particular
river is designated in accordance with the bill. It follows that all
unappropriated and unreserved waters would be available for
appropriation and use under State law for future development of the
area.15
The “similar” departmental bill, however, contained additional express language
on the reservation of water and the taking of state recognized rights, so these
comments were not fully appropriate to the language than being considered.16
The Senate bill, S. 119, had retained more of the departmental language,
although the critical language as to the federal right was changed from an affirmative
statement to a negative implication. The Senate language was adopted at conference
as the final language.17
Section 6 of S. 119 contained the water law related items, numbered differently
but worded as they ultimately were in the final language. The Senate Committee
Report explained the provisions as follows:
Water Rights
The language contained in subsection 6(f) is intended by the
committee to preserve the status quo with respect to the law of water
rights. No change is intended. The first sentence states that
14114 Cong. Rec. 26594 (1968).
15Id.
16As set out in H.R. Rep. No. 90-1623, supra, at 19, the Departmental version read:
(f) The designation of any stream or portion thereof as a national scenic river area
in accordance with the provisions of this Act shall have the effect of reserving,
subject to rights vested under either State or Federal law at the time of such
designation which are compensable under the next following sentence, the waters
of such stream for the purposes of this Act, but in quantities no greater than
necessary to accomplish such purposes. Any taking by the United States, under
the provisions of this Act, of a water right that is vested under State or Federal
law, that is beneficially used at the time a national scenic river area is established,
and that prior to the date of this Act, would have been compensable if taken or
interfered with by the United States for purposes not related to the exercise of the
commerce power, shall entitle the owner of such right to just compensation.
17H.R. Rep. No. 90-1917 (1968).
CRS-9
established principles of law will determine the Federal and State
Jurisdiction over the waters of a stream that is included in a wild river
area. Those established principles of law are not modified. The third
sentence states that with respect to possible exemption of the Federal
Government from State water laws the act is neither a claim nor a
denial of exemption. Any issue relating to exemption will be
determined by established principles of law as provided in the first
sentence. The second sentence would apply to this legislation the
principle of compensation embraced by section 8 of the Reclamation
Act of June 17, 1902 (32 Stat. 388, 390, found in 43 U.S.C. 383).
This means that the Government must pay just compensation for a
water right taken for wild river purposes if the water right is a vested
property right under established principles of State or Federal law. See
U.S. v. Gerlach (339 U.S. 725).
Subsection 6(j) makes it clear that designation of a stream or its portion
thereof is not to be considered a reservation of unappropriated waters other than
for the purposes of this act—and in no greater quantities than are necessary for
those purposes.
It should be made clear that it is the intention of the committee that the
Federal Government may reserve only such unappropriated waters as may be
required for the purposes specified in this act. The establishment of a National
Wild and Scenic Rivers Systems is not intended to affect or impair any prior valid
water right vested under State or Federal law.18
This language was paraphrased on the floor. Senator Church engaged in a
dialogue with Senator Allott who stated that he would like to “ask a few questions
and perhaps make a little legislative history,” during the course of which some aspects
of the bill appear to have been overstated:
Mr. Church: I would say to the Senator that whatever present law
decrees with respect to the priority of rights, among appropriators, that
law is left intact by this bill. It is true that the Federal Government can
acquire rights by reservation, just as private citizens can acquire rights
by appropriation. We sought not to interfere with water law, one way
or another. We took great care in committee, as the Senator knows, to
work out language that would make it clear that present water law is
not altered by the provisions of this bill.
Mr. Allott: . . . I think perhaps the legislative intent of the language
shown at the bottom of page 5 of the committee report and the three
paragraphs under the section entitled “Water Rights,” might be further
clarified. First, I think it should be stated that the appropriate
Secretary can only reserve unappropriated waters for the purposes of
this act. I am sure the Senator from Idaho is in agreement with that.
Mr. Church: I am in agreement with that.
18S. Rep. No. 90-491 at 5 (1967).
CRS-10
Mr. Allott: Second that the reservation is subject to prior water rights
vested under State law, and therefore that the appropriate Secretary
cannot insist upon any greater flow in the river than the amount of
unappropriated water. I am sure the Senator would agree with that?
Mr. Church: Yes, I am in agreement with that.
Mr. Allott. Third, the only superior right the appropriate Secretary
will have on the river is with regard to subsequent appropriations under
State law.
Mr. Church: I find no difficulty with that.
Mr. Allott: I am sure that is true. We do have now in the report on
page 5, and I think we should make a record of it, the concept of a
reservation only of unappropriated waters, and that this reservation is
subject to prior appropriations and paramount only to subsequent
appropriations.19
This discussion is somewhat confusing because, although it is correct to say that
the federal water rights created by the Act are only for the unappropriated water in
the source and are subject to prior water rights vested under state law, this discussion
failed to also note that the Act included language permitting federal condemnation of
state recognized rights if needed for the purposes of the Act.
In describing S. 1446 in the previous (89th) Congress, a bill that contained similar
language preserving established principles of law, Sen. Church had further stated that:
Precaution has been taken to fully protect established water rights, and
to make certain that State water laws are not infringed in any way.
The Senate Interior Committee hammered out amendments to the
original language to make doubly sure that the status quo with respect
to water law remains unchanged20
In responding to a question from Sen. Kuchel as to whether it was not “the
understanding of the Senator that there has been no substantive change in the
presently established principles of Federal and State water rights law,” Sen. Church
stated:
The Senator is correct. The whole of the language in the sections to
which the Senator has referred – sections, incidentally, which include
the amendment the Senator proposes as subsection (i) under section 5
of the bill – was to maintain the status quo with respect to the whole
complicated structure of water law.
19113 Cong. Rec. 21747 (1967).
20112 Cong. Rec. 419 (1966).
CRS-11
We have tried diligently to write language which would not embark us
upon any new departure in the field of water law.
We seek to leave the law as it stands, to establish a wild rivers system
which will not impair or alter or in any way change existing State or
Federal laws concerning water rights.21
Sen. Kuchel of California had expressly approved the ‘neither claim nor denial’
language in the 89th Congress;22 he was the sponsor of amendments to clarify the
section on water rights; and expressly approved of the final language on the floor.23
It appears from these comments that leaving the status quo of the law as it was
and not infringing in any way on state water laws was understood to allow
establishment of federal water rights for federal purposes. This conclusion also was
made clear by a discussion that ensued after an amendment was proposed that would
have required a federal water right for wild and scenic river purposes to be obtained
under state law. The amendment was rejected on the grounds that it would frustrate
the purpose of the legislation, that the current language protected both federal and
state law within their respective spheres, and that the current language allowed both
the federal and state governments to seek judicial determination of the respective
rights of each. In urging rejection of the amendment, Sen. Church introduced a legal
analysis by the Department of the Interior that clearly indicated that the existing
wording of the Wild and Scenic Rivers Act preserved the status quo as to current
water law, and that the status quo permitted both federal and state rights.24
21112 Cong. Rec. 431 (1966).
22112 Cong. Rec. 430 (1966).
23112 Cong. Rec. 431 (1966).
24112 Cong, Rec. 488 (1966). The analysis of the Department stated:
1. The amendment assumes erroneously that under the terms of the bill the Secretary
of the Interior or the Secretary of Agriculture is required to take some affirmative action
in order to reserve water for the purposes of the act. The bill neither requires nor
permits the Secretary to take such action. The enactment of the bill is itself a
reservation of the water needed to carry out its purposes.
2. The amendment assumes that a water right could be perfected under State law for the
purposes of the wild rivers program. In fact, however, State laws do not provide for the
appropriation of water for the purpose of maintaining the natural flow of a stream. It
would therefore normally not be possible to comply with State law, and the amendment
would defeat the purpose of the Federal legislation.
3. It is settled law that Federal legislation authorizing Federal lands to be used for a
particular purpose reserves sufficient unappropriated water flowing through the Federal
lands to accomplish that purpose. This reservation does not affect prior valid rights
under State law, but it does establish a priority that is good against subsequent
appropriators. This principle of law is recognized and applied by section 5(h) of the bill
which provides:
Designation of any stream or portion thereof shall not be construed as a
reservation of the waters of such stream for purposes other than those specified in
this Act, or in quantities greater than necessary to accomplish these purposes.
(continued...)
CRS-12
WSRA Water Rights in Practice
Although federal reserved water rights appear to be available under WSRA, they
have not always been claimed.25 Agency materials26 indicate that in instances where
another underlying federal right (e.g. national forest reserves) exists and appears
adequate to provide sufficient water, a WSRA federal right might not be asserted.27
Similarly, if a right to adequate instream flows is available under state law, the United
States has applied for necessary water by that route. Adequate flows may also be
obtained under a specific state statute, through cooperative agreements, by filing
defensive protests objecting to possibly harmful water right applications by others, or
through purchase of necessary water from willing sellers. As noted above, the United
States has never condemned water rights for WSRA purposes.
In addition, the individual legislation designating a wild and scenic river may
address particular water resource situations.
Discussion and Conclusions
To summarize, the language of the Wild and Scenic Rivers Act itself appears to
create federal water rights to flows of protected river segments necessary to carry out
the designation purposes. The legislative history fully supports this interpretation.
The right appears to be to water not otherwise obligated under state law, but with the
additional power in the federal government to condemn rights vested under state law
if necessary to accomplish the federal purposes.
24(...continued)
The amendment would reverse this established principle of law by requiring the
Secretary to acquire an appropriation right under State law to carry out the Federal
program – a requirement with which it would probably be impossible to comply.
4. One of the major premises of the wild rivers bill, as stated in section 5(d) is that “the
jurisdiction of the States and the United States over waters of any stream included in a
wild river area shall be determined by established principles of law.” The amendment
is inconsistent with this premise and purports to write new water law. The wild rivers
bill is not an appropriate vehicle for undertaking a major revision of Federal-State water
jurisdiction. The wild rivers bill maintains the status quo with respect to water law, and
we believe that such action is highly desirable. It would be a mistake, in our judgment,
to imperil the wild rivers program by injecting a new and highly controversial change
in established water law.
25Circumstances may arise in which the United States may be obliged to rely on the federal
reserved right, as e.g. in a general water adjudication or to carry out the federal purposes if
no other means are available.
26A Compendium of Questions and Answers Relating to Wild and Scenic Rivers, Technical
Report of the Interagency Wild and Scenic Rivers Coordinating Council, Revised January,
1999, at 48-52.
27In some circumstances, such as a general water adjudication, the United States may have to
claim whatever federal reserved rights exist in order not to have that option precluded by a
final judgment that omits them.
CRS-13
Issues remain, however. Because the lands involved in the few Supreme Court
cases to date on federal water rights were in western states, the cases involving
federal “reserved” rights contained terminology appropriate to public domain lands
and “appropriation” water law contexts that prevail in those states. How a court
would articulate a federal right in the context of acquired lands or states having a
“riparian” water law system cannot be predicted. It is likely, however, that a court
would simply articulate the federal right in the manner that best implements
Congressional intent, and that the rights associated with federal enclaves in general
would be similar to those of federal reservations.
As discussed above, the quantity of the water right is the amount sufficient to
carry out the purposes of the Act and no more. Probably, the quantity as to a
particular protected river or segment would depend on the existing flows, the values
for which the river was being protected, and its classifications.
It also is not totally clear as of what date the federal right takes “priority” where
that analysis is relevant. Ordinarily, the relevant date would appear to be the effective
date of the reservation or designation. However, some protections of the Act begin
when a river is designated for study, and it might be argued that this is the proper
priority date with respect to a river that later is successfully included in the system.
However any federal reserved rights might be characterized, in practice the
federal agencies managing wild and scenic rivers also have sought to safeguard the
necessary river flows under state law, through cooperative agreements and through
purchases from willing sellers.