Weighing in on Wild & Scenic River Eligibility in the GMUG

The GMUG is currently undergoing a Forest Plan revision process. As part of this process, the USFS is required to determine streams that are eligible for inclusion in the National Wild & Scenic Rivers System. During the forest planning process we have the opportunity to weigh in on the unique qualities of our local creeks and rivers and the chance to comment on whether certain segments are eligible for inclusion in the National Wild & Scenic Rivers System. The information below is intended to provide an overview of the Wild & Scenic Act and process, to provide additional resources for stakeholders interested in commenting on the GMUG Draft Wild & Scenic Eligibility report, and to provide access to the USFS Wild & Scenic comment portal.

Overview of the Wild & Scenic Act and Process

 

The Wild and Scenic Rivers Act of 1968 requires that

…the Secretary of Agriculture …shall study and submit to the President reports on the suitability or nonsuitability for addition to the national wild and scenic rivers system of rivers which are designated herein or hereafter by the Congress as potential additions to such system. The President shall report to the Congress his recommendations and proposals with respect to the designation of each such river or section thereof under this Act… [SEC. 4. (a)] 

While instream flow protections are a strong step in the right direction for our local streams and rivers, the protection that they afford primarily addresses the stream itself and does not extend to the health and management of lands within the stream corridor. By finding that a river or stream is suitable for Wild & Scenic protection status there is an opportunity for additional protections for the river corridor that extend beyond the streamflow itself.

Once a stream segment is determined to be “suitable” for Wild & Scenic, the federal land-management agencies must create management plans and strategies to: ensure a) a suitable stream segment’s free-flowing condition and b) outstandingly remarkable values. As part of this strategy, no federal agency may approve, permit, fund, or otherwise assist with projects that would have a direct and adverse effect on the ORVs for which the stream might be designated by Congress as Wild & Scenic. The requirement that federal agencies consider and evaluate these ORVs when conducting NEPA is not a direct legal protection but does provide an additional level of analysis and scrutiny when the agencies are considering a potentially impactful project. In Colorado, the BLM has interpreted suitability as requiring that the agency protect a stream’s free flowing nature, the specific ORV’s that have been identified for that segment, and water quality.

Suitable stream segments are placed under protective management to maintain the described ORVs, protect water quality necessary to support ORVs, to maintain the river’s free flowing conditions, and to maintain the classification for which the stream segment is eligible for Wild & Scenic status (eligibility includes characteristics of wild, scenic, or recreational assets).

It is important to recognize that federal agencies do not establish a federal reserve water right when a stream is determined as eligible or suitable for wild and scenic. With eligible and suitable status, the agencies only must take specific measures to protect the stream and stream corridor. However, once a river makes it to the final phase of the process and is actually designated as Wild & Scenic a federal water right is established to maintain the characteristics that the segment was established for.

What does the Wild & Scenic protection process involve?

  • Overview

    There are three distinct phases required to complete the Wild & Scenic protection process:

    1) Eligibility

    2) Suitability

    3) Full Congressional Designation

    The Wild & Scenic Act includes a planning provision that requires federal agencies to assess rivers in their management areas for eligibility and suitability determinations as part of each major revision of land management plans (including Forest Management Plans).

    The Forest Planning process involves assessing eligible streams on the GMUG. During the eligibility analysis the land management agency determines whether creeks are free-flowing and have outstandingly remarkable values (ORVs) (additional qualities can be added to this description during the suitability process).

    The suitability analysis is a more thorough approach to establishing whether a stream meets the requirements for inclusion in the National Wild & Scenic Rivers System (designation). The suitability analysis also determines what management actions are necessary to protect the stream’s outstandingly remarkable values (ORVs).

  • BLM

    The BLM is required to study and assess suitability of eligible stream segments when undergoing a resource management plan revision. The BLM’s Suitability Criteria (BLM Manual 8351 and Interagency Wild & Scenic Rivers Coordinating Council Guidance) provides eleven suitability criteria, include:

    1) Characteristics that do or do not make the area worth of w&s designation;

    2) Status of landownership, minerals, use in the area, amount of private land;

    3) Reasonably foreseeable potential uses, and values, of the land and related waters which would be enhanced foreclosed, curtailed, or diminished by w&s designation;

    4) Federal, public, state, tribal, local or other interests in designation or non- designation;

    5) Estimated cost of acquiring and administering the area if designated;

    6) Ability of the agency to manage and/or protect the river area or segment as w&s;

    7) Historical or existing rights which could be adversely affected;

    8) Adequacy of local zoning and other land use controls in protecting the river’s outstandingly remarkable values;

    9) Consistency of designation with other agency plans, programs, or policies and in meeting regional objectives;

    10) Contribution to a river system watershed or basin integrity;

    11) Other concerns, if any.

  • Forest Service

    The USFS manual requires that the agency study eligibility during forest management plan revisions.[2] Eligible stream segments in the USFS are determined as those that are free-flowing and possess at least one outstanding remarkable value (ORV).

    A suitability analysis and determination is initiated by proposed projects or when there is strong local interest/support for Wild & Scenic designation, when Congress expresses interest is a specific river, or when a proposed project would affect the resources that made the stream eligible. The Forest Service and other land-management agencies apply suitability study criteria generally similar to those listed for the BLM (above), as developed by the interagency coordinating council.

    If the federal agencies determine that a segment is not suitable and issues a formal finding of “non-suitability” it removes the eligibility status and relieves the agency of obligations to preserve the ORVs.

    [1] The Secretary … shall make specific studies and investigations to determine which additional wild, scenic, and recreational river areas within the United States shall be evaluated in planning reports by all Federal agencies as potential alternative uses of the water and related land resources involved. [SEC. 5. (d)]

    [2] Section 5(d)(1) of the WSR Act directs agencies to study rivers during the land management planning process. The Forest Service’s 2012 planning rule (36 CFR 219.7(c)(2)(vi)) requires a comprehensive inventory of rivers and their evaluation for eligibility during forest plan revision. Forest Service policy states that all named rivers on a standard US Geological Survey (USGS) 7.5-minute quadrangle must be included (Forest Service Handbook 1909.12, Chapter 80).