Section 2(a) (ii) of the Wild and Scenic Rivers Act of 1968: an underutilized tool to designate national wild and scenic rivers.

• Jurisdiction: United States
• Author: Hannon, Jack
• Date: 22 December 1999

I.

INTRODUCTION

The primary means of designating segments of America's rivers as National Wild and Scenic Rivers has been Congressional action, as provided by the landmark Wild and Scenic Rivers Act of 1968 (the "Act"). Through October 1998, the thirtieth anniversary of the Act, approximately 9,129 miles of rivers have been included in the National Wild and Scenic Rivers System by Act of Congress and now enjoy the statutory protections set forth in the Act.

This paper addresses a separate and independent means of including rivers in the national system, through the procedures set forth in section 2(a)(ii) of the Act. Subject to certain prerequisites and conditions, section 2(a)(ii) authorizes the Secretary of the Interior to include a river already protected by a state river protection program in the national system upon request by a state's governor. This paper describes those prerequisites and conditions, cites examples of the successful use of section 2(a)(ii), and notes certain limitations and opportunities for the future use of this river conservation tool. It also provides an updated appraisal of a critical 1978 report by the General Accounting Office ("GAO") describing the lack of progress in expanding the national rivers system both by Congressional and Secretarial action.

At the time the Wild and Scenic Rivers Act passed, Congress expected the states to undertake "as much of the job as possible."(1) But, the scorecard on state participation under the Act during the first thirty years shows this goal has not been achieved. Segments of only eighteen rivers have been included in the system pursuant to section 2(a)(ii), representing approximately 1,773 river miles.(2) This represents only 12% of the total number of rivers and 16% of total river miles designated under the Act.(3)

However, several recent trends make it much more likely that the use of section 2(a)(ii) will assume the significant role Congress originally envisioned for it. These include the broad shift in authority from federal to state and local government; the new emphasis on community-based river conservation activities; and the growing awareness of the economic benefits to the state or states of a national "designation" of a river. Thus, expanded use of section 2(a)(ii) deserves renewed attention by state governments and the river conservation community in the Act's thirtieth anniversary year.

II.

SECTION 2(a)(ii) REQUIREMENTS AND CONGRESSIONAL INTENT

Section 2(a)(ii) has several requirements that must be met for a river to be designated and protected within the "national wild and scenic rivers system".(4) First, the river segment must be protected within a state's river protection program by act of a state's legislature, and must be permanently administered as such by an agency or political subdivision of that state.(5) Second, the river must be found to meet the Act's criteria by the Secretary of the Interior, upon proper application by the state Governor. Third, the costs of administering the river, excluding costs associated with administering and managing federally owned lands, must be borne by the state or political subdivision.

This framework, which provides a key role to the states in obtaining the full benefits of the Act, was the result of considerable evolution in thinking by Congress and the Administration during the critical 1967-68 legislative period.(6) Indeed, one of the key principles in the House version of the final bill clearly contemplated extensive participation by the states in protecting rivers under the Act:

A second [principle] is that, since the task of preserving and administering such streams is not one that can or should be undertaken solely by the Federal Government, the states ought to be encouraged to undertake as much of the job as possible and that such encouragement can be given not only by giving the financial aid for which the Land and Conservation Fund Act already provides but by assuring them that such Federal agencies as the Federal Power Commission and the Corps of Engineers will not upset their plans by taking adverse action without the full knowledge and consent of the Congress.(7)

The House report expresses the still unfulfilled hope that "... all the states will become active partners in the development of the national Scenic Rivers System."(8)

III.

DEVELOPMENT OF STATE RIVER PROTECTION SYSTEMS

In the decades prior to passage of the Act, a few states had initiated protection of certain rivers,(9) but only Wisconsin had enacted a comprehensive legal framework for protecting designated state rivers.(10) But with the stimulus of the Act, many state legislatures enacted legal frameworks for state supervision of wild and scenic rivers. In some instances, the provisions of the state frameworks bore a striking...