Written by Coleen Rutledge Davis
April 27, 1990

This is part 2 of an article written about the National Wild and Scenic Rivers Act in 1990.  Please verify the current relevance of all information contained in this article, rather than relying on its contents as part of your decision-making process. 

Legislative History

In the 1960s, substantial concern was expressed for the protection of outdoor recreational activities.  Congress responded to this concern by creating the Outdoor Recreation Resources Review Commission and, later, the Bureau of Outdoor Recreation.^8  This was followed by enactment of the Wilderness Act in 1964.^9  A few years later, President Johnson established the President’s Council on Recreation and Natural Beauty and the Citizens’ Advisory Committee on Recreation and Natural Beauty.¹⁰  Against this backdrop, the Wild and Scenic Rivers Act was passed in 1968.

The legislative history of the Wild and Scenic Rivers Act indicates congressional recognition of five principles.  First, the legislative material indicates that certain rivers should be preserved for public use and enjoyment.¹¹  ”Preserve” means “[t]o keep in perfect or unaltered condition; maintain in an unchanged form.”^12  If this was the definition intended by Congress, the Act was intended to restrict prospective changes to the river’s character, as measured from the date of designation.  Such an interpretation is strengthened by statements of Senator Hatfield who said that the Act does not attempt to “undo” development or to interfere with existing activities.¹³  The Act establishes a classification system which provides further support for the view that the Act was only intended to limit prospective changes.¹⁴  In fact, one member of Congress has argued that new uses which are consistent with the Act are to be allowed.¹⁵  Clearly, Congress did not intend for the Act to be used to create a de facto wilderness.¹⁶

The second principle found in the legislative history is that Congress wished to encourage states to preserve rivers for public use and enjoyment.¹⁷  Although the legislative history remains silent on why state involvement is to be encouraged, this goal is probably related to economics, political issues, and administrative concerns.  The procedure for inclusion of state-designated rivers in the System is one manifestation of this objective.¹⁸

Third, the legislative history demonstrates congressional recognition that rivers vary and should be preserved for different reasons.¹⁹  One river may have outstanding geologic value and another may have great historic or recreational value.  In this situation, Congress apparently intended to leave decisions about which characteristics are worthy of preservation to the administrative branch of government.

Fourth, governmental acquisitions under the Act are to be minimized.^20  In fact, Representative DeFazio makes it clear that the Wild and Scenic Rivers Act was not intended to expand federal condemnation power.²¹  Economic and political concerns undoubtedly resulted in recognition of this principle.  Acquisition of all lands within the boundaries of a river in the System would be very expensive.²²Â  Such acquisitions might be politically unpopular as well.  Beyond these considerations, federal agencies might have great difficulty operating some businesses found on rivers in the System.

Special use permits are issued for some business activities because of perceived needs for services that agencies are unable to provide.²³Â  A guide service is one example of a business that would be difficult for a federal agency to operated.  Expertise is essential in providing customers with safe fishing and rafting trips.  Expertise is also necessary for business to be profitable.  In addition, guide services are extremely labor intensive.  This industry has the potential for enormous liability.^24  For these reasons, guiding is a service that the federal government does not wish to provide.

In recognition of these concerns and the need to control and and river use, Congress intended that agencies regulate land use by easement, rather than by fee simple acquisitions.^25  This intent is reflected by Senator Hatfield’s comments during the floor debate of the Omnibus Oregon Wild and Scenic Rivers Act of 1988.²⁶

Fifth, the legislative materials indicate and the Act demonstrates that rivers are to be added to the National Wild and Scenic Rivers System only after considered deliberation.²⁷ Several practical considerations justify this approach. Perhaps the most obvious justification for deliberation is that, when a river is added to the System, the congressional intent is to preserve the river in its then-existing condition in perpetuity.  Federal funds must be allocated for management activities.  The economy around the river may stagnate since new industries may be inconsistent with the river’s designation and existing businesses may be unable to expand.  Beyond this, the river’s potential as a source of power is reduced.²⁸  All of these factors suggest that substantial analysis is desirable before rivers are added to the National Wild and Scenic Rivers System.

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Footnotes for Part 2

8. S.R. REP. NO. 11, 89th Congr., 1st Sess. 1, reprinted in1963 U.S. CODE CONG. & ADMIN. NEWS 664.

9. 16 U.S.C. sections 1131 - 1361.

10. Exec. Order No 11,278, 31 Fed. Reg. 6,681 (1966).

11. H.R. REP. NO. 1632, 90th Cong., 2nd Sess. 6, reprinted in 1968 U.S. CODE CONG. & ADMIN. NEWS 3801 at 3803.

12. THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1036 (New College Edition 1980).

13. 134 CONG. REC. S15236, S15243 (daily ed. Oct. 7, 1988) (Statement of Senator Hatfield).

14. See 16 U.S.C. section 1273(b) (1988).

15. 134 CONG. REC. H10109, H10115 (daily ed. Oct. 12, 1988) (Statement of Rep. DeFazio).

16. 134 CONG. REC. H10109, H10115 (daily ed. Oct. 12, 1988) (Statement of Rep. Smith).

17. H.R. REP. NO. 1632, 90th Cong., 2nd Sess. 6, reprinted in 1968 U.S. CODE CONG. & ADMIN. NEWS 3801 at 3803.

18. 16 U.S.C. section 1273(a).

19. H.R. REP. NO. 1632, 90th Cong., 2nd Sess. 6, reprinted in 1968 U.S. CODE CONG. & ADMIN. NEWS 3801 at 3803.

20. H.R. REP. NO. 1632, 90th Cong., 2nd Sess. 6, reprinted in 1968 U.S. CODE CONG. & ADMIN. NEWS 3801 at 3803.

21. 134 CONG. REC. H10109, H10115 (daily ed. Oct. 12, 1988) (Statement of Rep. DeFazio).

22. See113 CONG. REC. 21742, 21750 (1967) (statement of Sen. Nelson).

23. Outfitting and Guiding Permits, Proposed Policy 48 Fed. Reg. 15,296, 15,297 (1983).

24. E.g., Harmon v. United States 532 F.2d 669 (9th Cir. 1975).

25. See 16 U.S.C. section 1277(b) (1988).

26. 134 CONG. REC. S15236, S15243 (daily ed. Oct. 7, 1988) (Statement of Senator Hatfield).

27. H.R. REP. NO. 1632, 90th Cong., 2nd Sess. 6, reprinted in 1968 U.S. CODE CONG. & ADMIN. NEWS 3801 at 3804.

28. 113 CONG. REC. 21742, 21745 (1967) (Statement of Senator Church).

Filed by Coleen Davis at 8:20 am under Achieving Goals, Business Acumen, Resources, Solving Problems