Andy Kerr

Conservationist, Writer, Analyst, Operative, Agitator, Strategist, Tactitian, Schmoozer, Raconteur

The National Wild and Scenic Rivers System: Room for More Streams

The National Wild and Scenic Rivers System: Room for More Streams

In the past fifty years, we have learned—all too slowly, I think—to prize and protect God’s precious gifts. Because we have, our own children and grandchildren will come to know and come to love the great forests and the wild rivers that we have protected and left to them. . . . An unspoiled river is a very rare thing in this nation today. Their flow and vitality have been harnessed by dams and too often they have been turned into open sewers by communities and by industries. It makes us all very fearful that all rivers will go this way unless somebody acts now to try to balance our river development.

—President Lyndon Johnson, on signing the Wild and Scenic Rivers Act, October 2, 1968

As a reaction to a multicentury binge of dam building and water diversions, a group of renowned conservationists, among them John and Frank Craighead and Olaus Murie, came up with the idea of a national system of wild and scenic rivers. Senators Frank Church (D-ID) and Walter Mondale (D-MN) championed the cause (with Oregon’s Senator Mark Hatfield [R] also playing an important role). In 1968 Congress established the National Wild and Scenic Rivers System (NWSRS) by enacting into law the Wild and Scenic Rivers Act (WSRA).

The WSRA opens with these words:

It is hereby declared to be the policy of the United States that certain selected rivers of the Nation which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values, shall be preserved in free-flowing condition, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations. The Congress declares that the established national policy of dam and other construction at appropriate sections of the rivers of the United States needs to be complemented by a policy that would preserve other selected rivers or sections thereof in their free-flowing condition to protect the water quality of such rivers and to fulfill other vital national conservation purposes.

Under the original WSRA, eight stream segments totaling 774 miles—among them the lower Rogue River in Oregon—were designated the nation’s first wild and scenic rivers (WSRs). Since then, the WSRA has been repeatedly amended by Congress with new stream segment designations, so that as of December 2016 the NWSRS included 208 units totaling 12,708.8 miles in forty states and the Commonwealth of Puerto Rico. The federal government calculates this to be a little more than one-quarter of 1 percent of the nation’s rivers. It estimates by contrast that more than 75,000 large dams across the country have modified at least 600,000 miles, or about 17 percent, of America’s rivers.

There is room for more rivers in the NWSRS. Despite the political climate, it’s always a good time to introduce legislation to include more river segments in the NWSRS.

Free-Flowing Oregon

Oregon has more units and miles of the NWSRS than any other state. After the initial designations, Congress added more Oregon segments to the system in 1975, 1984, 1988, 1994, 1996, 2000, 2009, and 2013. There are fifty-nine units of the NWSRS in Oregon, totaling more than 1,916 stream miles, representing 29 percent of the individual units and 15 percent of the miles in the national system. The area of water and land protected in these Oregon units of the NWSRS is 595,456 acres. More detailed information (including stream reaches, classification, year of designation, locale, and such) can be found in my Larch Occasional Paper National Wild and Scenic Rivers and State Scenic Waterways in Oregon.

The federal government says Oregon has 110, 994 miles of streams. Most do not qualify for inclusion in the National Wild and Scenic Rivers System as they have been dammed, dewatered, ditched, denuded, and/or otherwise degraded, if not downright destroyed. Today, 2 percent of Oregon’s streams are in the National Wild and Scenic Rivers System. An estimated additional 10,000 miles (less than 3 percent of the total mileage) of Oregon streams are eligible for inclusion in the NWSRS.

A Closer Look at the WSRA

To qualify for inclusion in the NWSRS, a stream segment must first be free-flowing, which the WSRA defines as “existing or flowing in natural condition without impoundment, diversion, straightening, rip-rapping, or other modification of the waterway.” Congress wasn’t a purist on the matter, though, as the WSRA further says, “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.” Any free-flowing stream must also have at least one “outstandingly remarkable” value.

Wild, scenic, or recreational classification

A unit of the NWSRS is called a wild and scenic river (WSR). A WSR is further classified as either wild, scenic, or recreational, defined as follows in the WSRA:

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. 

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.

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.

A WSR may include one, two, or all three classifications.

The protective management corridor

The default setting of the WSRA is that the management corridor for a WSR is “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.” If the lateral boundaries were equidistant from the banks of the WSR, this would be a quarter-mile buffer on each side of the river. The WSRA allows the management agency to move the protected acres around (wider here, narrower there) so as to optimize the protection of WSR values.

On occasion, for several WSRs in Alaska and for Oregon’s Elkhorn Creek Wild and Scenic River (a tributary of the Little North Fork Santiam River in the Opal Creek Scenic Recreation Area on the Willamette National Forest), Congress has bumped the management corridor maximum to 640 acres of land per mile, or an average of a half-mile buffer on each bank. The Mount Hood National Forest and the Prineville District BLM, who jointly manage Oregon’s White Wild and Scenic River (which arises from a glacier on Mount Hood and flows to the confluence with the lower Deschutes Wild and Scenic River) have recommended that Congress fatten up the management corridor there to an average of 640 acres per linear mile of WSR. (Congress should also finally include White River Falls, so as to complete the WSRA protection from headwaters to mouth. The falls were not included to accommodate a proposed hydroelectric dam that is long since dead.)

Do’s and don’ts

The WSRA has but one overarching don’t: no dams or water diversions. This is a huge don’t. Another big don’t is: no new mining in wild-classified stream segments, subject to valid existing rights. Alas, by default the WSRA allows new mining claims to be filed in scenic- and recreational-classified stream segments. (In some cases the managing agency has administratively withdrawn scenic and recreational segments for up to twenty years at a time as allowed under the Federal Land Policy and Management Act.)

As for do’s, the overarching do is that the administering federal agency shall administer a WSR

in such manner as to protect and enhance the values which caused it to be included in said system without, insofar as is consistent therewith, limiting other uses that do not substantially interfere with public use and enjoyment of these values. In such administration primary emphasis shall be given to protecting its esthetic, scenic, historic, archeologic, and scientific features. Management plans for any such component may establish varying degrees of intensity for its protection and development, based on the special attributes of the area.

This statutory language leaves a great deal of discretion to the managing agency, and such discretion is sometimes abused. Nonetheless, for the most part, federal wild and scenic rivers are well managed.

Management plans, land acquisition, and water rights

Every time a WSR is added to the NWSRS, within three fiscal years the managing agency “shall prepare a comprehensive management plan for such river segment to provide for the protection of the river values.” The management plan is all-important to the conservation of the WSR as it is in the management plan that the various outstandingly remarkable values are comprehensively identified and protected.

The managing agency can acquire nonfederal land in a WSR, up to 100 acres per mile of WSR. The managing agency can acquire scenic easements on additional acreages of private land or to allow for public access. The power of eminent domain (condemnation with compensation) to acquire private lands in the river protection corridor is not allowed if the corridor is 50 percent or more federal public lands. State lands can only be acquired by donation or exchange. Tribal lands cannot be taken as long as the tribe is managing the lands consistent with WSR status.

A new federal reserved water right, for enough water to meet the purposes of the WSR, is established with a date of priority of the date of establishment of the WSR. Such water right is junior to already-existing water rights.

Outstandingly remarkable values

The mandate to “protect and enhance the values which caused it to be included” means it is critical to properly identify all outstandingly remarkable values (ORVs) offered by any given WSR to ensure that they are protected and enhanced. ORVs are either statutory (called out specifically in the WSRA: scenic, recreational, geologic, fish and wildlife, historic, and cultural) or other, as in “other similar values.”

A definitive listing of “other” ORVs has not been attempted by any of the four federal land management agencies—the Forest Service (USFS), the Bureau of Land Management (BLM), the Fish and Wildlife Service (FWS), and the National Park Service (NPS)—that administer wild and scenic rivers. Only the BLM has ventured to define as a matter of formal policy what some of the “other” ORVs might include:

Other Similar Values. While no specific evaluation guidelines have been developed for the “other similar values” category, additional values deemed relevant to the eligibility of the river segment should be considered in a manner consistent with the foregoing guidance—including, but not limited to, hydrologic, ecologic/biologic diversity, paleontologic, botanic, and scientific study opportunities. [emphasis added]

Outstandingly remarkable values are those that either Congress determined the wild and scenic river to have during consideration of the legislation to establish it; and/or the managing agency found the wild and scenic river to have as it was developing the requisite management plan. In general, Congress is willing to be more expansive about what qualifies as an outstandingly remarkable value in order to support legislation to designate a wild and scenic river. After all, if voters think something is outstandingly remarkable in value, then it is. By contrast, the managing agencies generally view outstandingly remarkable values through two distinct lenses:

before designation, when the agency is doing an evaluation of whether it should recommend that Congress establish a particular free-flowing stream as a wild and scenic river, and

after designation of a wild and scenic river by Congress, when the agency’s role is limited to managing it, whether the agency was supportive of designation or not.

It almost always comes down to this. As a class, Bureau of Land Management and Forest Service managers (far less than National Park Service or Fish and Wildlife Service land managers) view wild and scenic river establishment as placing a limit on their management discretion. Bureaucrats like discretion, as it is in their nature. As bureaucrats want reasons not to make recommendations that limit their discretion, managers tend to be quite stingy with ORVs for a stream they have to evaluate and possibly recommend to Congress for wild and scenic river designation. After designation, however, federal land managers view themselves as entrusted with the management of a public resource worthy of congressional recognition, and after all, there are often several ORVs worth noting.

List 1 is a survey of ORVs identified in agency management plans for various Oregon WSRs over the decades. Bold entries in the list are statutory outstandingly remarkable values called out in the Wild and Scenic Rivers Act of 1968 as amended (note that “other” is not further defined there). Plain (Roman) entries were compiled from a quick review of the webpage for each current wild and scenic river in Oregon and a quick scan of the management plan for each wild and scenic river, if available, from that site (N=31). Italic entries are adapted from Table 3.1 of the White River National Wild and Scenic River Environmental Assessment (ca. 1993), jointly prepared by the USFS and the BLM. The accompanying White River National Wild and Scenic River Management Plan is the best management plan I’ve seen, with a most detailed cataloging of ORVs.

More on WSR ORVs can be found in a memorandum I prepared on the subject.

How Units Are Added to the National Wild and Scenic Rivers System

The WSRA specifies that all federal agencies, when planning for water and related resources, must consider potential new WSRs. The way WSRs are added to the system has evolved over time.

Study, then designate

The original statutory architecture of the WSRA was that a potential WSR would first require an Act of Congress to study a stream segment for possible inclusion in the NWSRS and then another Act of Congress to actually include it. The Illinois WSR was an original study river named in the WSRA when it passed in 1968 and became a WSR by Act of Congress in 1984. The Owyhee WSR followed a similar path. The North Umpqua WSR was made a study river by Act of Congress is 1984 and designated a WSR by Congress in 1988. Other Oregon congressional study rivers recognized as such in 1988 and still awaiting congressional designation as WSRs include the Blue, Chewaucan, lower North Fork Malheur, and South Fork McKenzie rivers, along with Steamboat Creek, a tributary to the North Umpqua.

State-protected rivers

A governor of a state can request that the Secretary of the Interior include a state-protected river in the NWSRS. If a governor so asks and the secretary agrees, the state-protected stream becomes part of the NWSRS without a specific Act of Congress. The Klamath WSR and the Wallowa WSR came into being in 1994 after Governor Barbara Roberts of Oregon made a request to Interior Secretary Bruce Babbitt. The Wallowa was designated a congressional study river in 1988.

Just designate

In recent decades, Congress has eschewed the two-step process of first ordering a stream to be studied and then later designating it. No longer are two Acts of Congress necessary to conserve a stream for this and future generations. Senator Mark Hatfield (R) pioneered instant designation—and at a large scale—with enactment of the Oregon Omnibus Wild and Scenic Rivers Act of 1988. Hatfield’s bill included some Oregon scenic waterways and many streams found eligible for WSR status by the USFS and the BLM.

Occasionally, Congress has designated a WSR that has never been considered by a federal land management agency. Such was the case for the Fifteenmile Creek WSR on the Mount Hood National Forest in Oregon, designated in 2009, and the Wildhorse and Kiger Creeks WSR on Steens Mountain in southeast Oregon, designated in 2000.

Congressionally Pending New Wild and Scenic Rivers in Oregon

Senator Ron Wyden has introduced the Oregon Wildlands Act of 2015, which would add ~246 miles of new and extended WSRs in Oregon to the NWSRS. The legislation would go beyond the default setting of the WSRA to withdraw from mining the entire WSR—not just those segments classified as wild, but also those classified as scenic and recreational. Here are the units the bill would add:

·      Molalla River Wild and Scenic River (21.3 miles, associated with the Molalla National Recreation Area including the Table Rock Fork)

·      Nestucca Wild and Scenic River (15.5 miles)

·      Walker Creek Wild and Scenic River (2.0 miles)

·      North Fork Silver Creek Wild and Scenic River (6.0 miles)

·      Jenny Creek Wild and Scenic River (17.1 miles)

·      Spring Creek Wild and Scenic River (1.1 miles)

·      Lobster Creek Wild and Scenic River (5.0 miles)

·      Elk Creek Wild and Scenic River (7.3 miles)

·      Franklin Creek Wild and Scenic River (4.5 miles, associated with the proposed Devils Staircase Wilderness)

·      Wasson Creek Wild and Scenic River (10.1 miles, associated with the proposed Devils Staircase Wilderness)

·      Rogue River Wild and Scenic River additions (37 tributary streams, totaling 121.0 miles, associated with the proposed Rogue Canyon National Recreation Area: Kelsey, East Fork Kelsey, Whisky, East Fork Whisky, West Fork Whisky, Big Windy, East Fork Big Windy, Little Windy, Howard, Mule, Anna, Missouri, Jenny, Rum, East Fork Rum, Wildcat, Montgomery, Hewitt, Bunker, Dulog, Quail, Meadow, Russian, Alder, Booze, Bronco, Copsey, Corral, Ditch, Francis, Bailey, Shady, Slide, Quartz, North Fork Galice and Galice creeks, and Long Gulch)

·      Elk Wild and Scenic River additions (12 tributary streams, totaling 52.2 miles, on the Rogue River-Siskiyou National Forest: Blackberry, Panther, Bald Mountain, South Bald Mountain, Rock, Platinum, West Fork Panther, East Fork Panther, Lost, Milbury, McCurdy and Bear creeks)

Alas, Congress adjourned at the end of 2016 without enacting the Oregon Wildlands Act into law. We expect the bill to be reintroduced in the next Congress but are not optimistic about its passage. But while the congressional conservation pipeline may be clogged, it is not full. Now is the time for more legislation to be introduced to designate more wild and scenic rivers in Oregon.

There are a multitude outstandingly remarkable values for Oregon's Wild and Scenic Rivers.

There are a multitude outstandingly remarkable values for Oregon's Wild and Scenic Rivers.