The Wild and Scenic Rivers Act and Federal Water Rights

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 that the purpose of the act 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 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