Wilderness, water, and climate change.

• Author: Zellmer, Sandra

1. INTRODUCTION II. WILDERNESS, NATURALNESS, AND WATERSHEDS A. Wilderness Characteristics B. Wilderness Management--Naturalness, Wildness, and Public Use III. CLIMATE THREATS TO NATURALNESS AND WILDNESS IV. HUMAN THREATS TO NATURALNESS AND WILDERNESS V. PROTECTING WILDERNESS WATERS THROUGH FEDERAL LAW A. The Wilderness Act's Prohibitions and Exceptions 1. Water Resources Development 2. Activities "Necessary to Meet Minimum Requirements" and Control Fire, Insects, and Disease B. Federal Reserved Water Rights C The Wild and Scenic Rivers Act D. The Clean Water Act VI. CONSERVATION IMPLICATIONS VII. CONCLUSION: DELIBERATE NONINTERVENTION I. INTRODUCTION

   Federally designated wilderness areas provide substantial benefits to society, including beauty, quiet, and peaceful sanctuary. Unparalleled opportunities for low-impact, personally challenging recreational opportunities are found in wilderness areas as well. The ecological benefits and services provided by wilderness areas are at least equally compelling: watershed protection, high quality habitat, migration corridors for climate-threatened species, and carbon sequestration by intact vegetation and soils, just to name a few.

   Although preserving wilderness areas has served the nation well in the past, it is not clear that preservation will continue to be an appropriate conservation strategy in the face of rapid and dramatic changes in climate. Scientists and policy makers are beginning to embrace more adaptive land management approaches in hopes of promoting sustainable local, regional, and global responses to a range of potential climate scenarios. (1) In some places, adaptation plans will include active intervention to foster transitions to more resilient watersheds and ecological communities. Meanwhile, the pressure to develop water resources within and near wilderness areas and to exploit the timber, forage, game species, fish, and other virtually untapped components of wilderness will become more acute as the nation searches for viable climate mitigation and adaptation strategies.

   For wilderness, climate change raises a compelling question: Does it still make sense to protect wilderness areas from all deliberate forms of human intervention and development? More specifically, what if anything should be done to preserve headwaters, streams, lakes, wetlands, and aquifers within wilderness areas as temperatures, seasons, and other climate-affected characteristics change?

   This Article focuses on the continuing relevance of preserving intact wilderness areas and the watersheds and stream flows within them. It concludes that the importance of protecting wilderness and its "community of life" (2) from intervention and development will only increase as the climate changes. Wilderness areas provide large blocks of contiguous habitat and undisturbed migration corridors for climate-threatened species. (3) Wilderness watersheds sustain fish and wildlife populations, provide exceptional recreational opportunities, shield downstream communities from flooding, and supply high quality freshwater for a broad range of human uses. (4) Wilderness areas also provide a baseline where ecological lessons can be learned and used to test more intensive adaptation strategies implemented in other areas. (5) In addition, untrammeled wilderness areas offer a spiritual balm for humans and a respite from the noise-ridden, traffic-laden, fully "wired" urban society.

   The Article progresses as follows. Part II explores the origins and purposes of the Wilderness Act, (6) and explains why protecting wildness and preventing deliberate manipulation of wilderness characteristics are not only appropriate but also essential in the twenty-first century. In Part III, climate-related threats to wildness, particularly threats to wilderness waters and water-dependent resources, are addressed. Part IV chronicles how climate change is increasing the pressure to alter wilderness components and processes in the name of climate adaptation or mitigation. Part V assesses the efficacy of the Wilderness Act and a trio of federal water law doctrines--federally reserved water rights, the Wild and Scenic Rivers Act, (7) and the Clean Water Act (CWA) (8)--for protecting wilderness watersheds. It finds that no single one of these doctrines can accomplish the task alone, and argues that they should be implemented in a more synergistic, complementary fashion to protect the wild.

   Finally, Part VI details the conservation implications of not manipulating wilderness characteristics and components. It grapples with the complexities of preserving wilderness watersheds that are already degraded due to climate change or other human-induced impacts. In the end, the Article concludes that although some minimal restoration activities may be appropriate in some wilderness areas where necessary to counteract previous or present human interventions, wilderness areas ought to be left largely "untrammeled," even if other important values are diminished over time. Admittedly, the call for deliberate nonintervention is an extreme stance, but it is precisely the stance that Congress adopted in the Wilderness Act and it is one that is becoming all the more imperative under the forces of climate change.

2. WILDERNESS, NATURALNESS, AND WATERSHEDS

   The Wilderness Act is widely known as one of the nation's preeminent preservation statutes. (9) Today, federally designated wilderness areas are found within each major category of the federal public lands--national forests, national parks, wildlife refuges, and public lands managed by the Bureau of Land Management (BLM). (10) There are over 700 federally designated wilderness areas in forty-four states, covering more than 107 million acres of land, or around 5% of the United States land base. (11) The vast majority of wilderness in the lower forty-eight states--about 75%--is located within only five ecoregions: one desert ecoregion--the Mojave Desert of California--and four high elevation ecoregions--the southern and middle Rocky Mountains, the Sierra Nevada Mountains, and the Cascade Mountains of the Pacific Northwest. (12)

   Over the years, the Wilderness Act has been remarkably stable and robust, with few legislative revisions to its requirements. (13) The Act is so well loved that, as Professor Rodgers notes, it is "virtually repeal-proof." (14) During almost every congressional session since 1964, new wilderness areas have been added to the system or existing areas have been expanded. (15) Once established, Congress rarely un-designates wilderness areas. (16)

   1. Wilderness Characteristics

      The Wilderness Act specifies that only those lands retaining a "primeval character and influence" qualify as wilderness. (17) For an area to be designated, it must meet the following criteria:

      (1) [G]enerally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value. (18) Small areas that are "of sufficient size as to make practicable its preservation and use in unimpaired condition" include the Rocks and Islands Wilderness in California, which encompasses nineteen acres of coastal shoreline, reefs, and islands situated within the Pacific flyway for migratory birds, and Pelican Island Wilderness, which covers six acres of lagoon within the Indian River in northern Florida, set aside as a "bird haven" by President Theodore Roosevelt in 1903. (19) By contrast, immense swaths of land are included in some of the wilderness designations within Alaska--the largest, Wrangell--St. Elias, has more than 9 million acres---and in the Rockies--Idaho's Frank Church-River of No Return Wilderness has over 2 million acres. (20)

      The protection of water resources and water-dependent species featured highly in the congressional debates favoring passage of the Wilderness Act. Senator Frank Church, widely known for his legacy of conservation initiatives, stated that "wilderness not only is important to those who love the outdoor life and the sportsmen who hunt and fish there; it is equally needed for nature studies and general scientific inquiry, and for wise watershed and wildlife conservation." (21) Church added, "one of the purposes of the proposed legislation is to prevent a further opening up of the area ... so that the scenic and wilderness values, which are the predominant values, can be preserved, and so that the wildlife and the watershed can be preserved as well." (22)

      The absence of roads is a hallmark of federally protected wilderness areas, distinguishing these areas from all other categories of federal as well as state and private land. (23) Motorized or mechanized means of transportation are quite common, even prevalent, in national parks, national forests, BLM lands, and many wildlife refuges. (24) "Roadless" is a term of art in wilderness lexicon. Congress required the Department of Interior to make wilderness recommendations on all "roadless" areas of at least 5000 or more acres within parks, wildlife refuges, and BLM lands. (25) BLM defines roadless as "the absence of roads which have been improved and maintained by mechanical means to insure relatively regular and continuous use. A way maintained solely by the passage of vehicles does not constitute a road." (26) The Forest Service's definition is more specific: a road is "[a] motor vehicle travelway over 50 inches wide, unless designated and managed as a trail." (27) Trails, by contrast, are those passageways "established for travel by foot, stock, or trail vehicle." (28)

      The National Forest System alone is home to around...