G. Wild and Scenic Rivers Act

The Wild and Scenic Rivers Act (WSRA)[1] provides for the protection and preservation of certain rivers and their riparian lands.  A river may be included in this system by Congress or, if protected by an act of the State legislature, the Secretary of the Interior.  Sections 7, 5, and 11 have special relevance for hydropower licensing. 

Under Section 7,[2] the agency administering the WSRA on a river (BLM, NPS, USFWS, or USFS) reviews any license application for a project on or affecting that river.  Section 7 prohibits an original license for any project that is proposed to be located within the boundaries of a designated river or a Congressionally authorized study area.[3]  Section 7 strictly prohibits FERC from issuing a new license for any project works that lie within a designated river reach.[4]  FERC has established a policy of dismissing license or preliminary permit applications where the proposed development is barred by the WSRA.[5]

For any project (including all works) located wholly outside designated boundaries, the administering agency determines whether the project would invade the designated area (e.g., through the backwater effect of an impoundment) or unreasonably diminish the scenic, recreational, and fish and wildlife values present at the date of designation, also called “outstandingly remarkable values” (ORVs).  The standard for a Congressionally authorized study river is similar.[6]

WSRA Section 5(d) states: “In all planning for the use and development of water and related land resources, consideration shall be given by all Federal agencies involved to potential national wild, scenic, and recreational river areas.”  It further requires that “the Secretary of the Interior shall make specific studies and investigations to determine which additional wild, scenic and recreational river areas... shall be evaluated in planning reports by all Federal agencies as potential alternative uses of water and related land resources involved.”[7]  In partial fulfillment of the Section 5(d) requirements, the National Park Service has compiled and maintains a Nationwide Rivers Inventory (NRI), a register of river segments that potentially qualify as national wild, scenic, or recreational river areas.  The NRI is a comprehensive plan under Section 10(a)(2)(A) of the Federal Power Act.

Under WSRA Section 11(b), NPS is authorized to assist, advise, and cooperate with governments, landowners, or individuals to plan, protect, and manage river resources.[8]

[1]               16 U.S.C. § 1271 et seq.

[2]               16 U.S.C. § 1278.

[3]               See id.

[4]               See id.  The Act provides: “[t]he Federal Energy Regulatory Commission shall not license the construction of any dam, water conduit, reservoir, powerhouse, transmission line, or other project works under the Federal Power Act, as amended, on or directly affecting any river which is designated in section 1274 of this title as a component of the national wild and scenic river system or which is hereafter designated for inclusion in that system….”

[5]               See Symbiotics, LLC, 110 FERC ¶ 61,235 (2005).

[6]               See id.

[7]               16 U.S.C. § 1276(d).

[8]               16 U.S.C. § 1282(b).