Below are frequently asked questions (FAQ's) regarding potential Wild and Scenic designation for Rock Creek.
Congress passed the Wild and Scenic Rivers Act at the height of the modern dam-building era in order to ensure that the construction of new dams is balanced with the protection of select free-flowing rivers that possess nationally significant values. This landmark law is the highest form of protection for rivers in the United States. In the words of Congress: “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 Wild and Scenic Rivers Act protects rivers in five major ways:
As of September 2011, the National Wild and Scenic Rivers System includes 203 river segments comprising 12,598 river miles. That translates to approximately 0.4% of the river miles in the United States. By comparison, more than 75,000 large dams have modified at least 600,000 miles of rivers across the country, or approximately 17% of the river miles in the United States.
Typically, a river becomes Wild and Scenic first by being categorized as “eligible” for designation by the appropriate land management agency (Forest Service, BLM, etc.), although Congress has designated rivers that were not previously found eligible for protection. Any section of river that is free-flowing and possesses one or more “outstandingly remarkable values” (ORVs) can be found eligible for Wild and Scenic protection. Rivers can be added to the National Wild and Scenic Rivers System in one of two ways. The most common way is for Congress to pass Wild and Scenic legislation that is signed into law by the President. The less traditional way is for the Governor of a state to petition the Secretary of the Interior to add a river to the system.
Wild and Scenic designation ensures that the many forms of development that are occurring across the country do not compromise a river’s free-flowing character, water quality and quantity, or special values. First and foremost, Wild and Scenic designation ensures that no new federally-licensed dams or other harmful water development projects (e.g. the inter-basin transfers that are common in the Colorado River Basin) are constructed on designated rivers. Other activities that may be restricted by Wild and Scenic designation if they cannot be undertaken without harming a river’s free-flowing condition, water quality or special values include mining, oil and gas drilling, commercial timber harvest, and major highway and bridge construction projects.
Designated rivers are classified in one of three categories depending upon the extent of development and accessibility along each section:
Wild and Scenic corridor boundaries are established to protect a river’s free-flowing condition, water quality, and special values for which it was designated. Generally, the corridor width cannot exceed an average of 320 acres per mile, which, if applied uniformly along the entire designated segment, is a quarter-mile (1,320 feet) on each side of the river. Boundaries may be wider or narrower, but are not to exceed the 320 acre average per mile without approval by Congress. Measurement is made from the ordinary high water mark, exclusive of islands.
Wild and Scenic designation can be thought of as an insurance policy that protects rivers from future changes that would harm their free-flowing character and special values. Once a river has been deemed “eligible” for Wild and Scenic designation by the relevant land management agency, the agency typically adds an amendment to its management plan prescribing that it be managed as if it was already designated Wild and Scenic. So far, approximately 1,200 river miles across western Montana have been found eligible for Wild and Scenic designation and are currently managed to preserve these values.
Generally, livestock grazing and related infrastructure are not affected by Wild and Scenic designation, with the caveat that agricultural practices should be similar in nature and intensity to those present in the river corridor at the time of designation. Although it is rare, the managing agency may modify grazing practices on public lands if they are degrading water quality or harming the special values for which a river was designated.
Unlike the Wilderness Act, the Wild and Scenic Rivers Act does not prohibit the use of motorized vehicles on land or on water within designated river corridors. In fact, several of the most well known Wild and Scenic rivers in the country allow jet boating, including sections of the Rogue, Snake, and Salmon rivers. Motorized use within designated river corridors may be restricted through the river management planning process, however it is typically allowed to continue if it was occurring prior to designation.
No. Under the Act, the federal government has no authority to regulate or zone private lands. Land use controls on private lands are solely a matter of state and local zoning. Although the Act includes provisions encouraging the protection of river values through state and local land use planning, there are no binding provisions on local governments. In the absence of state or local river protection provisions, the federal government may seek to protect values by providing technical assistance, entering into agreements with landowners and/or through the purchase of easements, exchanges, or acquisition of private lands.
Wild and Scenic designation neither limits the public from accessing public lands within designated river corridors nor opens private lands to public access. Designation has no effect on fishing and hunting, as those activities are regulated under state laws. Where hunting and fishing were allowed prior to designation, they may continue. In general, Wild and Scenic designation does not restrict boating access unless specific issues have been identified in the river management planning process.
Wild and Scenic designation has no effect on existing valid water rights or interstate water compacts. In prior appropriation states such as Montana, any new Wild and Scenic water rights claimed under state law would have a priority date as of the river’s date of designation by Congress and would be considered junior to existing water rights.
In many cases, there may be no practical effect, although designation is still very important to guarantee protection of a river’s special values over the long term. Laws like the Wilderness Act do allow certain activities in designated wilderness areas that may be incompatible with a Wild and Scenic designation. For instance, the President may authorize construction of dams, water resource and energy projects in wilderness areas, but not in Wild and Scenic river corridors. Likewise, the National Park Service may allow major road and bridge construction projects in national parks, but those projects would not be allowed along a Wild and Scenic river if they adversely affected its free-flowing character or special values.
Under current USDA permit restrictions, firewood cutting is prohibited within wild and scenic river corridors (approximately ¼ mile buffer along the creek). However, there are a few options for addressing this concern:
Mining activities on private property, as well as any other activities on private land are not impacted by a wild and scenic designation unless that activity requires a federal permit. If a mining operation required a federal permit to operate it would have to show no degradation to water quality or other values. If operating under a permit exclusion statement, no federal oversight would be required (except in violations of the Clean Water Act) and therefore wild and scenic would not necessarily have an impact. The same rule applies for other activities on private land that require a federal permit. For example if a federal permit is required for a landowner to conduct certain activities such as bank stabilization or stream-bed modification (404 permit), then the federal agency reviewing the permit (in this case the Army Corps of Engineers) would conduct additional analysis of the project impacts to the wild and scenic designation and values for which designation applies.
There is no data or empirical evidence supporting a correlation between a wild and scenic designation and increase in recreational pressure. In Montana, there is only one river where use is subject to the permitting system (the Smith River) and the Smith River is not designated Wild and Scenic. On the contrary to this assumption, Montana’s Wild and Scenic rivers in the Flathead experience much less recreation pressure. Furthermore, national recognition and publicity as a Blue Ribbon Trout stream has brought many anglers to Rock Creek, and marketing of a wild and scenic designation does not accompany the designation itself. The CRMP process would require a recreational capacity analysis, which would greatly benefit the creek and its current management.
In terms of land acquisition and purchases, while the Wild and Scenic Rivers Act does authorize fee title acquisition to land along a wild and scenic river, if 50 percent or more of the river corridor acreage is in public ownership (federal, state, local), this acquisition can only be on a willing seller-willing buyer basis.
This option has only been used rarely on Wild and Scenic Rivers. The objective of the designation is to protect and, as possible, enhance the values, which caused the river to be designated. Should some proposed or actual use clearly threaten the values the river was designated to protect, the river managing agency would work with a landowner to explore ways to avert the threat through local zoning, state provisions, land exchanges, or purchases on a willing-seller/willing-buyer basis. Condemnation is typically prohibited on WSRs by their enabling legislation.
The authority to regulate and control land use and development activities on private lands within the designated river corridors rests with local agencies, in the case of Rock Creek, Missoula and Granite counties. The Forest Service does not have the authority to zone or regulate uses on these private lands outside the bed and banks of designated rivers. Coordination between planning departments and the Lolo National Forest would be essential whenever applications for projects within bed-and-banks of designated rivers are submitted.
The Lolo National Forest has experienced a decrease in funding over the past few years, creating difficulty for the forest service in performing certain activities that would otherwise be completed. Without an official designation of Rock Creek, the Lolo National Forest will not be eligible to receive allocation of additional funds from the Congressional budget, which would assist in planning and management efforts that protect the current values of Rock Creek. Without an official designation, Rock Creek’s status as wild and scenic eligible could change in future planning processes. This means that the creek could possibly lose its current management priority and certain activities that conflict with the current values could potentially be permitted.
To learn more about the Wild and Scenic Rivers Act and the National Wild and Scenic Rivers System, visit the National Wild and Scenic Rivers System website.
To view a more comprehensive list of questions and answers about the Wild and Scenic Rivers act, visit their Wild and Scenic Q&A Search Engine.