Order Code RL30809
CRS Report for Congress
Received through the CRS Web
The Wild and Scenic Rivers Act
and Federal Water Rights
Updated March 23, 2006
Pamela Baldwin
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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The Wild and Scenic Rivers Act
and Federal Water Rights
Summary
During the 1960s, 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, it appears that the act creates 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 sometimes have been secured under state law,
through cooperative agreements, and by purchases from willing sellers.

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Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Federal Authority Over Water . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Water Rights Under the Wild and Scenic Rivers Act . . . . . . . . . . . . . . . . . . . . . . 3
Background and Statutory Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Legislative History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Cases and WSRA Water Rights in Practice . . . . . . . . . . . . . . . . . . . . . . . . . 12
Discussion and Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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The Wild and Scenic Rivers Act
and Federal Water Rights
Background
During the 1960s, 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 its consideration for such inclusion: Provided, That this shall
1 P.L. 90-542, 82 Stat. 906, codified at 16 U.S.C. §§ 1271 et seq.
2 The National Park Service, the Bureau of Land Management, the Forest Service, and the
Fish and Wildlife Service all manage designated rivers.

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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.

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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
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 law 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), 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 powers in connection with water and water projects beyond those under
the Commerce Clause.6
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
3 See, 4 WATERS AND WATER RIGHTS, Ch. 35: Constitutional Foundations of Federal Water
Law, Robert E. Beck, Editor-in-Chief (1991 Ed., 2004 replacement volume).
4 Gibbons 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).
5 4 WATER AND WATER RIGHTS, § 35.02(c), Robert E. Beck, Editor-in-Chief, (1991 Ed.,
2004 replacement volume).
6 Id., § 35.04.
7 See United States v. New Mexico, 438 U.S. 696, n.5 at 702 (1978).

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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
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 ....” 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 in order to carry out the purposes of the act.
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.
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 junior to rights existing on the date
of the establishment of the federal right but 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
8 Winters 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).
9 A 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
(continued...)

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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
water typically needed to be moved to be used, the new appropriation system of water
rights and priorities developed.
Throughout much of our nation’s history, the public domain lands were
generally available for entry and for perfection of private ownership. However, the
government could withdraw certain 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 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 federal lands as
a “non-reserved” federal right to distinguish such right from the historical meaning
of the term “reserved.” Or perhaps “reserved” rights would be interpreted 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.11 Given the
9 (...continued)
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.
10 See 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.
11 The Supreme Court has interpreted federal reserved rights as including those for any
federal enclave, and the waiver of sovereign immunity in 43 U.S.C. § 666 as permitting the
United States to be joined in proceedings adjudicating rights to the use of water of a river
system, including appropriative rights, riparian rights, and reserved rights. United States v.
Eagle County, 401 U.S. 520, 523-524 (1971). Another analysis, in speaking of the property
power and water, stated: “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.” T. Olson, Memorandum for Assistant Attorney General, Land and Natural Resources
(continued...)

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basic constitutional authority of Congress to deal with property of the United States,
the choice of terminology 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 designations created by the
act.
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 some peak water flows could be impounded or diverted upstream
as long as sufficient flow was released to the protected segment to maintain the
values for which it was protected.
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 creates federal rights. In light of the federal rights 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 include federal rights 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
11 (...continued)
Division, June 16, 1982 at 48.
12 Congress apparently has spoken directly to instream water levels in other statues. In
United States v. New Mexico, supra, at 710, 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.).”

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traditional jurisdiction of states over waters is affected if its exercise impairs the
federal purpose of protecting free-flowing streams.
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 law so long
13 H.Rept. 90-16 at 13 (1968).

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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 then 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 established principles of law will
determine the Federal and State Jurisdiction over the waters of a stream that is
14 114 Cong. Rec. 26594 (1968).
15 Id.
16 As set out in H.Rept. 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.
17 H.Rept. 90-1917 (1968).

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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.
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?
18 S.Rept. 90-491 at 5 (1967).

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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, Senator 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 Senator 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,” Senator
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.
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
19 113 Cong. Rec. 21747 (1967).
20 112 Cong. Rec. 419 (1966).
21 112 Cong. Rec. 431 (1966).

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Senator Church also quoted from an analysis of the bill by the Department of
Agriculture, which he said reflected his own views: “The enactment of the bill is
itself a reservation of water needed to carry out its purposes.”22
Senator Kuchel of California had expressly approved the ‘neither claim nor
denial’ language in the 89th Congress;23 he was the sponsor of amendments to clarify
the section on water rights; and expressly approved of the final language on the
floor.24
It appears from these comments that preserving the status quo of the law and not
infringing on state water laws was nonetheless understood as allowing 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, Senator 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.25
22 112 Cong. Rec. 403, 433 (January 17, 1966).
23 112 Cong. Rec. 430 (1966).
24 112 Cong. Rec. 431 (1966).
25 112 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.
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
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CRS-12
Cases and WSRA Water Rights in Practice
Although very few cases have involved water rights under the act, the Idaho
Supreme Court has held that §13(c) does reserve federal water rights:
The legislative intent is awkwardly stated in the negative in section 13(c)
of the Wild and Scenic Rivers Act, but it is clear that Congress intended to
reserve water to fulfill the purposes of the Act ....
Section 13(c) makes little sense unless the legislation reserves water to
fulfill the purposes of the Act. It would be anomalous to logic to say that the Act
which was expressly created to preserve free-flowing rivers failed to provide for
the reservation of water in the rivers. Such a result would run contrary to the
language of section 13(c) and the Congressional declaration of policy.26
This case was decided in the context of a congressionally designated river,
rather than a state-nominated river. Because rivers that enter the National System
through the state application process must be managed by the state in question,
protection of their free-flowing nature and values is accomplished under state law.
However, § 13 refers to designation of “any” stream or portion thereof in connection
with the reservation of necessary water, and the argument can be made that a federal
water right is available to protect state-nominated rivers as well as those Congress
designates. However, we know of no instances in which a federal water right has
been invoked to protect a state-nominated river.27
In addition, the individual legislation designating a wild and scenic river may
address particular water flows and facility situations.
Although federal reserved water rights appear to be available under WSRA, they
have not always been claimed.28 Agency materials29 indicate that in instances where
25 (...continued)
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.
26 Potlatch Corp. v. United States, 134 Idaho 912, 914; 12 P. 3d 1256, 1258 (Idaho 2000).
27 The Rivers, Trails, and Conservation Assistance Program of the National Park Service
maintains information on state-nominated rivers and conducts reviews of state applications
and § 7 studies of the possible adverse impacts of proposed water resources projects on such
rivers.
28 Circumstances 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
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CRS-13
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.30
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.
Discussion and Conclusions
To summarize, the Wild and Scenic Rivers Act appears to create federal water
rights to flows of protected river segments necessary to carry out the purposes of the
act. The text and legislative history support 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. To date, this condemnation power has never been
used.
As discussed, 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.
In practice, in addition to claiming federal reserved rights for some protected
rivers, the federal agencies managing wild and scenic rivers have sought to safeguard
the necessary river flows under state law, through cooperative agreements and
through purchases from willing sellers.
28 (...continued)
no other means are available.
29 A 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.
30 In 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.

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