The Wild and Scenic Rivers Act and Federal Water Rights

. The Wild and Scenic Rivers Act and Federal Water Rights Cynthia Brougher Legislative Attorney April 1, 2009 Congressional Research Service 7-5700 www.crs.gov RL30809 CRS Report for Congress Prepared for Members and Committees of Congress c11173008 . 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 protecting certain rivers that possessed outstanding undeveloped qualities. This sentiment culminated in the enactment of the Wild and Scenic Rivers Act of 1968. Rivers may be designated for protection under the act by Congress or 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 also reviews specific water rights provisions within certain river designations. The act states that the United States’ policy is to preserve certain rivers possessing outstanding values in “free-flowing condition” and its purpose is 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 implies 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 (e.g., water rights acquired under state law) are adequate. Necessary water flows sometimes have been secured under state law, through cooperative agreements, and by purchases from willing sellers. Congressional Research Service . The Wild and Scenic Rivers Act and Federal Water Rights Contents Background ................................................................................................................................1 Federal Authority Over Water......................................................................................................2 Water Rights Under the Wild and Scenic Rivers Act ....................................................................2 Background and Statutory Language .....................................................................................2 Legislative History................................................................................................................4 Cases and WSRA Water Rights in Practice ............................................................................4 Water Rights Provisions Within Specific Designations ................................................................5 Issues Regarding Water Rights ..............................................................................................6 Examples of Water Rights Provisions ....................................................................................7 Current Legislation Considerations and Proposed Legislation......................................................9 Contacts Author Contact Information ........................................................................................................9 Congressional Research Service . 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 protection of certain rivers possessing outstanding undeveloped qualities. This sentiment 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. 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 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.4 The act defines a 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.”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 The act provides protection for a designated river by limiting the licensing of dams, reservoirs and other water project works on, or adversely affecting, protected segments. 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. 7 To protect the flow of the river, several provisions of the act allow for the assumption or creation of federal water rights sufficient to carry out the purposes of the act. The act allows the United States to assert a taking of a water right at the time the river is designated and entitles the previous owner of the water right to just compensation.8 It also provides that the reservation of a water right is limited to the purposes specified by the act and is limited to the quantity necessary to accomplish those purposes. 9 The act does not affect the jurisdiction of the states to manage water of included streams if state jurisdiction would not impair the purposes of the act, nor does it affect interstate compacts that might govern waterways included in the Wild and Scenic River System. 10 1 P.L. 90-542, 82 Stat. 906, codified at 16 U.S.C. §§ 1271 et seq. 16 U.S.C. § 1271. 3 Id. 2 4 The National Park Service, the Bureau of Land Management, the Forest Service, and the Fish and Wildlife Service all manage designated rivers. 5 16 U.S.C. § 1286. 6 Id. 7 Id. 8 16 U.S.C. § 1284(b). 9 16 U.S.C. § 1284(c). 10 16 U.S.C. § 1284(d) and (e). Congressional Research Service 1 . The Wild and Scenic Rivers Act and Federal Water Rights The interpretation of these provisions, the relevant legislative history and the import for managing wild and scenic rivers is discussed in this report. 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.11 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. 12 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.13 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. 14 Considering that the act also 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,15 and a court is likely to be cautious in concluding that a federal water right is created, the power of the federal government to do so cannot be denied. 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. 11 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). 12 Gibbons v. Ogden, 9 Wheat. (922 U.S.) 1, 210-211 (1824). See Perez v. Campbell, 402 U.S. 637 (1971); Lee v. Florida, 392 U.S. 378 (1968); Nash v. Florida Industrial Comm. 389 U.S. 235 (1967); Hill v. Florida ex rel. Watson, 325 U.S. 538 (1945). 13 4 WATER AND WATER RIGHTS, § 35.02(c), Robert E. Beck, Editor-in-Chief, (1991 Ed., 2004 replacement volume). 14 Id. at § 35.04. 15 See, e.g., United States v. New Mexico, 438 U.S. 696, n.5 at 702 (1978). Congressional Research Service 2 . The Wild and Scenic Rivers Act and Federal Water Rights 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.”16 Because the act includes language that limits it from being construed to reserve water for purposes other than those named or in greater quantities than necessary, 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.17 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.18 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.19 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. After a court determines that a water right has been created by reservation, the amount of the water right necessary to carry out the act’s purposes must be determined. The quantity of a WSRA federal water right appears to be the amount necessary to achieve the purposes of the act. In the case of the WSRA, it appears to be that amount necessary to preserve the free-flowing condition of the river and to preserve the values for which the river was protected. 20 It is therefore arguable what quantity is sufficient in each instance, and the protected amount may not be the full flow the river. The definition of free-flowing would 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. 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. 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 16 16 U.S.C. § 1271. This conclusion is reinforced by the express, though negatively stated, reference to the creation of water rights in 16 U.S.C. § 1284(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”). 18 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). 19 See Arizona, 373 U.S. at 600. 17 20 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.). Congressional Research Service 3 . The Wild and Scenic Rivers Act and Federal Water Rights 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, 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. The legislative history, including comments made during consideration of the bill, indicate many of the same conclusions reached by reading the current statutory language. That is, during the debate, Congress recognized comments provided by the Department of the Interior, specifically stating that the bill 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.21 These comments also reinforced the understanding of the quantity of the reserved right, which would allow only enough water to meet the purpose for which the river was designated.22 Debate over proposals of this legislation included an emphasis on whether the bill would affect current water rights. According to comments in the legislative history, the committee “took great care ... to work out language that would make it clear that present water law is not altered by the provisions of this bill.”23 In the relevant comments, the legislative history indicates that only unappropriated waters could be reserved for the purposes of the act.24 It also noted that “the reservation is subject to prior water rights vested under State law, and therefore the appropriate Secretary cannot insist upon any greater flow in the river than the amount of unappropriated water.”25 Finally, the legislative history indicated that the federal right would be superior only to subsequent appropriations under state law.26 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 the act 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 21 114 Cong. Rec. 26594 (1968). See also H.Rept. 90-16 (1968). Id. 23 113 Cong. Rec. 21747 (1967). 24 Id. 25 Id. 26 Id. 22 Congressional Research Service 4 . The Wild and Scenic Rivers Act and Federal Water Rights 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. 27 This case was decided in the context of a congressionally designated river, rather than a statenominated 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. Section 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.28 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. 29 Agency materials30 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.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. The United States has never condemned water rights for WSRA purposes. 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. There are 167 designations in the act, some of which 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, 27 Potlatch Corp. v. United States, 134 Idaho 912, 914, 12 P. 3d 1256, 1258 (Idaho 2000). 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. 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. 28 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 Representatives of the Departments of the Interior and Agriculture inform us that no water right has ever been condemned under WSRA. Congressional Research Service 5 . The Wild and Scenic Rivers Act and Federal Water Rights 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 wild and scenic 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. 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. (16 U.S.C. § 1273(b)(1).) 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. (16 U.S.C. § 1273(b)(3).) 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. 33 In each of these areas, the rivers themselves are an important resource. 34 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 33 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). 34 The National Parks Organic Act, 16 U.S.C. § 1: “the fundamental purpose of said parks ... is to conserve the scenery and the natural and historic objects and the wild life therein ... to leave them unimpared 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.” Congressional Research Service 6 . The Wild and Scenic Rivers Act and Federal Water Rights 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 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. (16 U.S.C. § 1274(a)(116)). 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. (16 U.S.C. § 1274(a)(57).) 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. (P.L. 99-590, § 102; 100 Stat. 3331.) 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.35 It could 35 In one case, a federal court held that the Department of the Interior had broken the law by surrendering its priority (continued...) Congressional Research Service 7 . The Wild and Scenic Rivers Act and Federal Water Rights 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 they were providing a priority right for the first time for the river.36 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. 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. (H.R. 1321, 102nd.)37 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 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. (H.R. 488, 107th.) 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.38 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. (16 U.S.C. § 1274(a)(22).) (...continued) right. See High Country Citizens’ Alliance v. Norton, 448 F. Supp. 2d 1235 (D. Colo. 2006). 36 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.”). 37 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. 38 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.” Congressional Research Service 8 . The Wild and Scenic Rivers Act and Federal Water Rights 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. Current Legislation Considerations and Proposed Legislation 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 seem to support this interpretation. The right appears to be limited 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 not been used. The quantity of the water right is the amount sufficient to carry out the purposes of the act and no more. Probably, the quantity of 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, especially in those instances where the designating language includes a specific water rights provision. 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. The 111th Congress has further expanded the Wild and Scenic Rivers System by enacting the Omnibus Public Land Management Act of 2009, which provides protection for numerous new river segments.39 A number of other bills have been introduced related to the Wild and Scenic Rivers System. 40 Author Contact Information Cynthia Brougher Legislative Attorney cbrougher@crs.loc.gov, 7-9121 39 See H.R. 146 (111th Cong.), enacted as P.L. 111-11 on March 30, 2009. 40 See, e.g., H.R. 167; H.R. 455; H.R. 1593; S. 635. Congressional Research Service 9