.
The Wild and Scenic Rivers Act (WSRA):
Protections, Federal Water Rights, and
Development Restrictions
Cynthia Brougher
Legislative Attorney
February 23, 2010
Congressional Research Service
7-5700
www.crs.gov
R41081
CRS Report for Congress
P
repared for Members and Committees of Congress
c11173008
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The Wild and Scenic Rivers Act (WSRA)
Summary
In its first session, the 111th Congress enacted an omnibus public lands bill that provided
conservation protection for a number of river segments under the Wild and Scenic Rivers Act of
1968 (WSRA). Another omnibus bill is widely expected in the second session and may include
additional provisions under the WSRA. Congress enacted the WSRA as part of a myriad of
environmental conservation legislation enacted in the 1960s and 1970s. The act provides
protection to certain rivers within the United States in order to balance the tendency toward
development of the nation’s rivers for industry or recreation. 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.” The act further provides that “the established national policy of dam and
other construction be complemented by a policy that would preserve other selected rivers ... in
their free-flowing condition to protect the water quality of such rivers and to fulfill other vital
national conservation purposes.”
Under the act, rivers meeting certain criteria may be designated for inclusion in a national rivers
system and classified for specific protections. A river may be classified as wild (the most
primitive rivers with the most restrictive protections), scenic (rivers with some access with
intermediate protections), or recreational (rivers with some development with the most lenient
protections). Designated federal agencies issue comprehensive management plans to ensure the
protected values of the river. In order to accomplish the goals of the act, the WSRA uses two main
methods of protection: water rights to maintain flows and restrictions on development for federal
projects to preserve the natural path of the rivers.
This report analyzes the federal government’s authority under the WSRA to maintain and
preserve designated rivers. It provides an overview of the WSRA and the process by which rivers
are designated and administered under the act. It also examines the use of federal water rights
under the act to ensure instream flows and the prohibitions on development of rivers for federal
projects.
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Contents
Overview of the WSRA .............................................................................................................. 1
Designation of Rivers Included in the National Wild and Scenic Rivers System..................... 2
Administration of Designated Rivers..................................................................................... 3
Water Rights Under the WSRA ................................................................................................... 3
Federal Water Rights Associated with Rivers Under WSRA .................................................. 3
Water Rights Provisions Within Specific Designations .......................................................... 5
Issues Regarding Water Rights ........................................................................................ 5
Examples of Water Rights Provisions .............................................................................. 6
Restrictions on Development Projects Under the WSRA ............................................................. 9
Congressional Interest and Proposed Legislation ......................................................................... 9
Contacts
Author Contact Information ...................................................................................................... 10
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The Wild and Scenic Rivers Act (WSRA)
ongress enacted the Wild and Scenic Rivers Act of 1968 (WSRA)1 as part of a myriad of
environmental conservation legislation enacted in the 1960s and 1970s. The act provides
C protection to certain rivers within the United States in order to balance the tendency
toward development of the nation’s rivers for industry or recreation. 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.”2 The act further provides that “the established national
policy of dam and other construction be complemented by a policy that would preserve other
selected rivers ... in their free-flowing condition to protect the water quality of such rivers and to
fulfill other vital national conservation purposes.”3
In order to protect rivers according to the purpose of the act, the WSRA uses water rights to
maintain flows and restrictions on development of federal projects to preserve the natural path of
the rivers. This report analyzes the federal government’s authority under the WSRA to maintain
and preserve designated rivers. It examines the use of federal water rights under the act to ensure
instream flows and the prohibitions on development of rivers for federal projects.
Overview of the WSRA
The WSRA created a national wild and scenic rivers system comprised of rivers meeting certain
criteria outlined by the act. Eligibility for inclusion in the system depends on the nature of the
river itself, although other bodies of water may be protected by the act. The WSRA defines river
as “a flowing body of water or estuary or section, portion, or tributary thereof, including rivers,
streams, creeks, runs, kills, rills, and small lakes.”4
The act permits a river area to be included in the wild and scenic rivers system if it is free-flowing
stream and the related adjacent land area possesses one or more of the following values: scenic,
recreational, geologic, fish and wildlife, historic, cultural, or other similar values.5 A river is
“free-flowing” if it exists or flows “in natural condition without impoundment, diversion,
straightening, rip-rapping, or other modification of the waterway.”6 A river may be included even
if it had previously been developed beyond its free-flowing condition upon restoration to such
condition.7 A river may be included in the wild and scenic river system even if minor structures
such as low dams or diversion works already exist along the section of the river proposed for
inclusion, but the act specifically states that future construction of such structures is not condoned
by the act.8
1 P.L. 90-542, 82 Stat. 906, codified at 16 U.S.C. §§ 1271 et seq.
2 16 U.S.C. § 1271.
3 Id.
4 16 U.S.C. § 1286(a).
5 16 U.S.C. § 1273(b).
6 16 U.S.C. § 1286(b).
7 16 U.S.C. § 1273(b).
8 16 U.S.C. § 1286(b).
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Designation of Rivers Included in the National Wild and Scenic
Rivers System
The WSRA intended for each river included in the national wild and scenic rivers system to be
classified in one of three categories: wild, scenic, or 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. Although many designations in the statute specify two categories or
do not specify any category, the act provides that rivers:
if included, shall be classified, designated, and administered as one of the following:
(1) Wild river areas—Those rivers or sections of rivers that are free of impoundments and
generally inaccessible except by trail, with watersheds or shorelines essentially primitive and
waters unpolluted. These represent vestiges of primitive America.
(2) Scenic river areas—Those rivers or sections of rivers that are free of impoundments, with
shorelines or watersheds still largely primitive and shorelines largely undeveloped, but
accessible in places by roads.
(3) Recreational river areas—Those rivers or sections of rivers that are readily accessible by
road or railroad, that may have some development along their shorelines, and that may have
undergone some impoundment or diversion in the past.9
Rivers may be designated by Congress, or, in some instances, be nominated by a governor and
approved by the Secretary of the Interior.10 Designation provides certain protections from
development and from the adverse effects of water resources projects for both the designated
segment of the river and the adjacent land.11 Generally, designations identify the particular river,
provide boundaries for the segment to be protected, and indicate what federal agency is
responsible for administering the designated segment.12
Congress may also designate rivers for potential addition to the wild and scenic river system.
After doing so, the Secretary of the Interior or the Secretary of Agriculture (if national forest
lands are involved) is directed to study and submit reports on the suitability of the segments for
inclusion to the President, who then makes recommendations to Congress regarding those
segments.13 The boundaries of potential additions are generally defined to “comprise that area
measured within one-quarter mile from the ordinary high water mark on each side of the river.”14
9 16 U.S.C. § 1273(b). Although many designations in the statute do not specify which category the particular
designation has assigned, the WSRA provides a more detailed process after the river is officially designated, wherein
the administering agency determines what classification is most appropriate within one year of designation. See 16
U.S.C. § 1274(b).
10 16 U.S.C. § 1273(a).
11 16 U.S.C. § 1274(a).
12 See, e.g., 16 U.S.C. § 1274.
13 16 U.S.C. § 1275(a).
14 16 U.S.C. § 1275(d).
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Administration of Designated Rivers
Rivers in the wild and scenic river system are managed by various federal agencies, but typically
are assigned to be administered by either the Secretary of Agriculture or the Secretary of
Interior.15 The WSRA requires the agency charged with administration of each segment to
“establish detailed boundaries therefor (which boundaries shall include an average of not more
than 320 acres of land per mile measured from the ordinary high water mark on both sides of the
river)” and determine the most appropriate classification of the segment.16 Until this boundary
determination is made, the default boundary of a designated river is “that area measured within
one-quarter mile from the ordinary high water mark on each side of the river.”17 The agency is
also directed “to prepare a comprehensive management plan for such river segment to provide for
the protection of the river values” and address issues of resource protection, development of lands
and facilities, user capacities, and other management practices.18
Water Rights Under the WSRA
The purpose of the Wild and Scenic Rivers Act is to preserve rivers “in free-flowing condition to
protect the water quality of such rivers and to fulfill other vital national conservation purposes.”19
To protect the flow of the river, the act provides for the assumption or creation of federal water
rights sufficient to carry out the purposes of the act.
Federal Water Rights Associated with Rivers Under WSRA
Although Congress has repeatedly deferred to state law in the area of regulation of water use,20
Congress nonetheless has authority to “reserve” a federal water right if necessary. This authority
is derived from the Winters doctrine of federal reserved water rights, announced by the U.S.
Supreme Court in a decision regarding a reservation for tribal lands. Under the Winters doctrine,
when Congress reserves some property for a federal purpose, it also reserves enough water to
fulfill the purpose of the reservation.21 Courts are likely to be cautious in concluding that a federal
water right is created, but may find such a right if Congress intended that such rights be created.
Congress’s intent may be indicated either by express language or by implication from a
congressional purpose, reservation, or directive for which water is necessary.
The WSRA implies a reserved right under a provision that prohibits any reservation that exceeds
the amount necessary to achieve the goals of the act. The provision states 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
15 The National Park Service, the Bureau of Land Management, the Forest Service, and the Fish and Wildlife Service
all manage designated rivers.
16 16 U.S.C. § 1274(b).
17 16 U.S.C. § 1275(d).
18 16 U.S.C. § 1274(d).
19 16 U.S.C. § 1271.
20 See, e.g., United States v. New Mexico, 438 U.S. 696, n.5 at 702 (1978).
21 Winters v. United States, 207 U.S. 564 (1908).
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this [act], or in quantities greater than necessary to accomplish these purposes.”22 This provision
indicates that the act would permit the reservation of a federal water right to some or all of the
instream flows for the purposes that are specified in the act and up to the quantity necessary to
achieve those purposes.23
The quantity of the federal right is often controversial under the WSRA. The Supreme Court has
held that the federal government may reserve unappropriated water (water not subject to a right
vested under state law) for federal purposes from federal “public domain” lands.24 The act
provides that the right secures “the quantity necessary” to achieve the act’s purposes, but that is
not always a clear guideline. It is arguable what quantity is sufficient in each instance, and the
protected amount may not be the full flow of the river.25 The WSRA protects rivers in their free-
flowing condition, and the definition of free-flowing may seem to suggest 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
under the act. On the other hand, the act’s reference to “necessary” water 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.
The effect of designations and federal reservations under the WSRA also raises questions
regarding the effect of the legislation on state laws. The limitation imposed to permit only the
reservation of unappropriated waters reflects the WSRA’s preservation of state law and
jurisdiction over the waters of designated rivers. The WSRA states that the jurisdiction of the
states over designated rivers “shall be unaffected by this [act] to the extent that such jurisdiction
may be exercised without impairing the purposes of this [act] or its administration.”26 Thus, it
seems that the act would not affect existing water rights under state law and that subsequent
appropriations under state law would be permissible so long as they did not adversely affect the
designated rivers.27
22 16 U.S.C. § 1284(c).
23 Although few cases have involved water rights under the act, the Idaho Supreme Court has held that the act does
reserve federal water rights. See Potlatch Corp. v. United States, 134 Idaho 912, 914 (Idaho 2000). This case was
decided in the context of a congressionally designated river, rather than a state-nominated river. Because rivers that
enter the 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, the WSRA 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.
24 Cappaert v. United States, 426 U.S. 128 (1976); United States v. New Mexico, 438 U.S. 696 (1973); Arizona v.
California, 373 U.S. 546 (1963); Winters v. United States, 207 U.S. 564 (1908).
25 Congress apparently has spoken directly to instream water levels in other statutes. 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.).
26 16 U.S.C. § 1284(d).
27 See 114 Cong. Rec. 26594 (1968). See also H.Rept. 90-16 (1968); 113 Cong. Rec. 21747 (1967).
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Another question that arises related to the reservation of a federal right is the priority that right
has among other water rights. The federal right vests and typically has a priority date as of the
date of the reservation, whether or not the water is put to immediate use.28 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. In some cases of federal reservations of water, the priority date
may be the date of enactment of the legislation designating the river, or the legislation may
provide for some other date of priority.
It is of interest to note that, although federal reserved water rights would be available under the
WSRA, they have not always been claimed.29 According to agency materials,30 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.31 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. Although
permitted by the WSRA, the United States has never condemned water rights for WSRA purposes
to CRS’s knowledge.32
Water Rights Provisions Within Specific Designations
Since the Wild and Scenic Rivers Act was enacted in 1968, dozens of rivers have been added to
the list of protected waterways and some include multiple bodies of water. Designating a river
under the act is not intended to change the flow of a river, but simply to protect the river from
future changes. However, the lack of specificity in water rights protection under the act, and an
unclear priority date for the rivers, have led some to include water rights protections within
subsequent legislation designating specific rivers, especially in the arid West. The vast majority of
wild and scenic river legislation does not address water rights. The few designations that do
reference water rights, and their different forms, are discussed here.
Issues Regarding Water Rights
Generally, concerns have been raised as to the appropriate nature of water rights under WSRA
designations. Upstream landowners and development interests, including state and local
governments, may be concerned about whether new downstream wild and scenic segments may
limit their water use and future water diversions. Conversely, downstream landowners and others
may fear that upstream designations will limit their future water development options.
28 See Arizona, 373 U.S. at 600.
29 Circumstances may arise in which the United States may be obliged to rely on the federal reserved right, as in a
general water adjudication or to carry out the federal purposes if no other means are available.
30 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.
31 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.
32 Authority for a taking of a water right vested under law can be found at 16 U.S.C. § 1284(b). Representatives of the
Departments of the Interior and Agriculture inform CRS that no water right has ever been condemned under WSRA.
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Several factors may be considered when evaluating the water rights for a proposed river. One
consideration is the type of designation of the river—wild, scenic, or recreational. The amount of
water needed to protect the values of each section may vary depending upon the type of
designation and its placement in the watershed. For example, water usage related to a protected
waterway presumably would be most restricted if the river were designated as wild. Development
or water usage near wild rivers cannot change the essential characteristics of primitive watersheds
and shorelines, and unpolluted waters.33 A recreational river would have the fewest restrictions of
the three types, as that designation applies to rivers that already have some access by roads, some
development along their shorelines, and some impoundment or diversion of waters in the past.34
However, future restrictions on development, including on water resource projects, apply even to
recreational rivers.
Another key factor is the type of land through which the river flows. National parks, national
forests, and wilderness areas have established water rights for waters within their boundaries to
protect their resources.35 In each of these areas, the rivers themselves are an important resource.36
The implied water rights conferred by the Wild and Scenic Rivers Act for a specific river
designated inside one of these land areas would be an overlay to those existing rights, that is, a
second layer of rights reserving water to the extent needed to accomplish the purpose of the
designation. In many areas, protection of wild and scenic values may be accomplished with the
original reserved water right. However, the implied priority date created with the designation of
the federal land may create a conflict when a river designation includes a specific priority date.
Arguably, the more specific priority date could supersede the more general implied priority date,
effectively eliminating the more senior priority right the river once enjoyed. This conflict has not
been tested in the courts.
Examples of Water Rights Provisions
Water rights provisions can address different purposes. One goal may be to quantify the extent of
the new water right under state law. Another goal may be to establish a priority date for any new
water rights created by the designation. For example, the enacting legislation for the Clarks Fork
33 See 16 U.S.C. § 1273(b)(1).
34 See 16 U.S.C. § 1273(b)(3).
35 See, e.g., Winters v. United States, 207 U.S. 564, 28 S. Ct. 207, 52 L. Ed. 340 (1908) (when the federal government
withdraws its land from the public domain and reserves it for a federal purpose, the government, by implication,
reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation. In so
doing, the United States acquires a reserved right in unappropriated water that vests on the date of the reservation and is
superior to the rights of future appropriators); United States v. New Mexico, 438 U.S. 696, 98 S. Ct. 3012, 57 L. Ed. 2d
1052 (1978) (the federal government may acquire rights to unappropriated water on federal lands when the land has
been reserved pursuant to congressional authorization for a specific federal purpose that requires the use of water);
Cappaert v. United States, 426 U.S. 128, 96 S. Ct. 2062, 48 L. Ed. 2d 523 (1976) (same); Sierra Club v. Lyng, 661 F.
Supp. 1491 (D. Colo. 1987) (holding that Wilderness Act impliedly established federal water rights in Wilderness
Areas).
36 The National Parks Organic Act, 16 U.S.C. § 1: “the fundamental purpose of the said parks ... is to conserve the
scenery and the natural and historic objects and the wild life therein ... by such means as will leave them unimpaired for
the enjoyment of future generations.”
The National Forests Organic Act, 16 U.S.C. § 475: “no national forest shall be established, except to improve and
protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to
furnish a continuous supply of timber ...”
The Wilderness Act, 16 U.S.C. § 1131: “‘wilderness areas’ ... shall be administered ... in such manner as will leave
them unimpaired for future use and enjoyment as wilderness.”
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Wild and Scenic River in Wyoming, which is designated as a wild river, has this language about
water rights:
The Secretary of Agriculture is directed to apply for the quantification of the water right
reserved by the inclusion of a portion of the Clarks Fork in the Wild and Scenic Rivers
System in accordance with the procedural requirements of the laws of the State of Wyoming:
Provided, That, notwithstanding any provision of the laws of the State of Wyoming
otherwise applicable to the granting and exercise of water rights, the purposes for which the
Clarks Fork is designated, as set forth in this chapter and this paragraph, are declared to be
beneficial uses and the priority date of such right shall be November 28, 1990.37
This provision has the benefit of clearly establishing a priority right, as well as the date and
quantity of that priority. The Clarks Fork River is in a national forest. It is not clear whether this
water rights designation provides a second, albeit junior, water right, or whether it has the effect
of thwarting the existing water rights that exist due to the land designation, giving the water rights
created by the designation a lower priority than if the statute had been silent.
A water rights provision might also establish that the river designation does not interfere with
established water rights. An example of this type of water rights language is found in the statute
protecting the Cache la Poudre River in Colorado.38 This wild river is in both a national park and
a national forest. Its water rights language is as follows:
Inclusion of the designated portions of the Cache la Poudre River... shall not interfere with
the exercise of existing decreed water rights to water which has heretofore been stored or
diverted ... as of the date of enactment of this title.... The reservation of water established by
the inclusion of portions of the Cache la Poudre River in the Wild and Scenic Rivers System
shall be subject to the provisions of this title, shall be adjudicated in Colorado Water court,
and shall have a priority date as of the date of enactment of this title.39
This water right provision recognizes existing water rights for stored and diverted water. It also
establishes a priority date as of the date of the act for each river segment within the designation.
Additionally, it establishes jurisdiction for any disputes over water. However, the section
preserving existing water rights refers only to those waters “stored or diverted.” As noted above,
it could be argued that this provision undercuts the existing priority of water rights created by
designation of the Cache la Poudre segments in Rocky Mountain National Park and Roosevelt
National Forest and gives those segments a more junior priority as of the date of the act.40 It could
also be claimed the language creates an overlay. The legislative history of the clause could be
read as indicating that the House of Representatives believed it was providing a priority right for
the first time for the river.41 In any event, when a priority is specifically created within a
designation, any existing priorities should also be addressed to avoid ambiguity as to their status.
37 16 U.S.C. § 1274(a)(116).
38 16 U.S.C. § 1274(a)(57).
39 P.L. 99-590, § 102; 100 Stat. 3331.
40 In one case, a federal court held that the Department of the Interior had broken the law by surrendering its priority
right. See High Country Citizens’ Alliance v. Norton, 448 F. Supp. 2d 1235 (D. Colo. 2006).
41 See H.Rep. 99-503 (March 20, 1986) (“The language also recognized that inclusion of segments of the Cache la
Poudre River in the Wild and Scenic River system creates a federal reserved water right in those segments and that this
water right shall be adjudicated in the Colorado court system, and shall have a priority date as of the date of passage of
this section.”).
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Only one example was found where the existing priority rights of the designated water body were
acknowledged. That language is found in the proposed legislation to change Black Canyon of the
Gunnison National Monument into a national park and make the Gunnison River a wild and
scenic river. It states:
No water rights or the reservation of water which would expand on the existing reserved
water right for the Black Canyon of the Gunnison National Monument, shall be created by
this designation.42
This language appeared to address the Gunnison River’s water rights adequately, and likely
would have assuaged concerns from upstream and downstream owners that their water usage
would not be changed or limited by the designation, even if not expressly stated.
Other water rights provisions would focus on protecting existing rights, rather than establishing a
priority date. For example, the proposed legislation for Northern Rockies ecosystem protection
included this language:
Nothing in this Act may be construed as a relinquishment or reduction of any water rights
reserved, appropriated, or otherwise secured by the United States in the State of Idaho,
Montana, Wyoming, Oregon, or Washington on or before the date of enactment of this Act.43
This language would appear to protect any water rights that existed at the time of the designation,
including any water rights that the designated rivers may have.
A different version of water rights language clarifies that a river’s designation as recreational will
not interfere with adjacent landowners’ water supply.44 The Missouri River segments protected
under the act have this language regarding water rights:
In administering such river, the Secretary shall ... permit access for such pumping and
associated pipelines as may be necessary to assure an adequate supply of water for owners of
land adjacent to such segment and for fish, wildlife, and recreational uses outside the river
corridor established pursuant to this paragraph.45
To the extent a water rights provision is needed, it could simply address existing water rights,
including those of the designated water body, and state that no modification of those rights would
occur as a result of the designation.
42 H.R. 1321, 102nd Cong. While this bill did not pass, the Black Canyon of the Gunnison became a National Park in
1999. The Gunnison River was not designated as a Wild and Scenic River as part of that act. P.L. 106-76, § 2; 113 Stat.
1126; as codified at 16 U.S.C. § 410fff.
43 H.R. 488, 107th Cong.
44 For another example, see 16 U.S.C. § 1274(a)(62)(B)(ii): “the Secretary of the Interior shall permit the construction
and operation of such pumping facilities and associated pipelines ... known as the ‘Saxon Creek Project,’ to assure an
adequate supply of water from the Merced River to Mariposa County.”
45 16 U.S.C. § 1274(a)(22).
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Restrictions on Development Projects Under the
WSRA
In addition to using reserved water rights to protect the flows of designated rivers, the WSRA
provides protection for a designated river by limiting the licensing of dams, reservoirs and other
water project works on, or adversely affecting, protected segments.46 The WSRA prohibits the
Federal Energy Regulatory Commission (FERC) from licensing “the construction of any dam,
water conduit, reservoir, powerhouse, transmission line, or other project works under the Federal
Power Act ... on or directly affecting any river” designated as part of the national wild and scenic
rivers system.47 Likewise, no other federal agency may “assist by loan, grant, license, or
otherwise in the construction of any water resources project that would have a direct and adverse
effect on the values for which [a designated] river was established.”48 The prohibitions on water
and power projects are very broad in the WSRA. The prohibitions generally limit federal agencies
from recommending authorization of such projects, or appropriations to begin construction on
such projects, that would have an adverse affect on the purpose of the designation.49
The restrictions placed on FERC and other federal agencies regarding rivers designated under the
WSRA extend to rivers designated as potential additions to the wild and scenic rivers system, at
least to some degree. The same prohibition on licenses for construction or assistance for
construction applies for a period of three complete fiscal years following any congressional action
that designates a river as a potential addition.50 However, if, during that period, the relevant
administering agency determines that the river should not be included in the wild and scenic river
system and provides appropriate notice to Congress, the agency may proceed with project plans.51
The act does not prohibit “licensing of, or assistance to, developments below or above a wild,
scenic or recreational river area or on any stream tributary thereto which will not invade the area
or unreasonably diminish the scenic, recreational, and fish and wildlife values present in the area
on the date of designation” as an addition or potential addition to the wild and scenic rivers
system.52
Congressional Interest and Proposed Legislation
The 111th Congress has further expanded the wild and scenic rivers system by enacting the
Omnibus Public Land Management Act of 2009 in its first session, which provides protection for
numerous new river segments.53 A number of other bills have been introduced related to the wild
46 For more information on one context in which licensing issues arise under the WSRA, see CRS Report RL32205,
Liquefied Natural Gas (LNG) Import Terminals: Siting, Safety, and Regulation, by Paul W. Parfomak and Adam Vann.
47 16 U.S.C. § 1278(a).
48 Id.
49 Id.
50 16 U.S.C. § 1278(b).
51 Id. If a designation of a potential addition provides for a period of study exceeding this three-year period, then the
period provided for in that designation must be used, instead of the three-year period.
52 16 U.S.C. § 1278(a). See also 16 U.S.C. § 1278(b).
53 See H.R. 146 (111th Cong.), enacted as P.L. 111-11 on March 30, 2009.
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.
The Wild and Scenic Rivers Act (WSRA)
and scenic rivers system in the 111th Congress, and another omnibus natural resources bill is
widely expected to be introduced in the second session.54
Author Contact Information
Cynthia Brougher
Legislative Attorney
cbrougher@crs.loc.gov, 7-9121
54 See, e.g., H.R. 167; H.R. 455; H.R. 1593; S. 635. See also Noelle Straub, Omnibus Natural Resource Bill Likely This
Year, Environment and Energy Daily (Jan. 26, 2010), available at http://www.eenews.net/EEDaily/2010/01/26/archive/
3?terms=omnibus+public+lands.
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