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Protecting Wild Waters: State Policy Options

By Mindy Bridges  |  February 15, 2022

Beginning in southwestern Oregon and flowing into California, the North Fork Smith River and tributaries provide valuable plant and wildlife habitat and a variety of recreational opportunities. That’s why Oregon named the 28-mile river its first Outstanding Resource Water in 2017.

The state designation gave another layer of protection to the North Fork Smith, which was already a federally designated Wild and Scenic River. Oregon’s action limits future activities that could impact the water quality, recreational uses and habitat for endangered and rare species.

Across the country, rivers and streams provide ecological, economic and cultural value to communities and industries. Many Americans rely on drinking water sourced from rivers and streams. Native American tribes may use these waters for traditional practices and consider specific places to hold cultural significance. Boaters, fishermen and women, and others use them for recreation.

Recognizing Special Attributes

States play an important role in determining specific water classifications and implementing water quality standards. These state policy options serve to protect the invaluable water quality, ecosystems and economic contributions provided by rivers. State policymakers also work with local and federal partners to assess and protect these waters by establishing state designations, such as Outstanding Natural Resource Waters and Scenic Waterways.

State protections for specific rivers and streams recognize the special attributes of the natural resource and regulate future use and development. Depending on the designation, certain types of activity may be banned or subject to closer review to prevent negative impacts on water quality. The processes for determining these designations may also promote engagement with federal agencies or local communities.

The U.S. Clean Water Act gives states authority to designate Outstanding Natural Resource Waters. States have established a variety of processes and requirements for this designation (also known as Tier III), which is considered one of the most protective water quality policies. Typically, water quality cannot be impacted or significantly modified by new human activities, while some preexisting uses may still be allowed.

Additionally, states have established different processes and names, including Exceptional, Tier III and Outstanding, for the designation. For example:

  • The Florida Department of Environmental Protection designates Outstanding Florida Waters, which must be approved by a governor-appointed citizen board.
  • Idaho’s water quality standards include the designation Tier III, or Outstanding Resource Waters, which must be approved by the Legislature.
  • New Mexico’s Outstanding National Resource Waters are proposed through petitions and reviewed by the state Water Quality Control Commission.
  • The Virginia Exceptional State Waters program protects high-quality waters, which are designated by a petition or nomination and following required notice and public participation processes.

Designation as a Wild and Scenic River pursuant to the federal Wild and Scenic Rivers Act also offers protection. As part of the National Wild and Scenic Rivers System, states and other partners may work with the federal government to protect certain waters and restrict future federal actions, such as licensing and permitting.

States also have established Wild and Scenic River designations and related programs, which often provide guidelines for planning and promoting additional community or stakeholder engagement. For example, Colorado established the Wild and Scenic Rivers Fund in 2009 as an alternative to the federal designation. Stakeholder groups use these funds to protect the “outstanding remarkable values” associated with certain rivers.

There are a multitude of designations to accomplish similar or overlapping goals. According to six new state reports recently commissioned by The Pew Charitable Trusts, these designations should be considered complementary tools.

Recent State Legislation

States continue to take steps to protect surface water and identify important bodies of water.

Some states considered resolutions to commemorate 2018 as the 50th anniversary of the federal Wild and Scenic Rivers Act. Additionally, the Virginia General Assembly designated at least six new segments of rivers as scenic rivers through legislation in the 2020-21 session. These rivers are often valued for their outdoor recreational value. Virginia also has established regulations for designating a waterbody as an Exceptional State Water, which is the equivalent of the EPA’s Outstanding Natural Resource Waters.

Using data and a defined process, Maine enacted HB 1242 in 2019 to update water quality classifications and increase protections for certain rivers and streams. Through a triennial process, the state Department of Environmental Protection studies and may propose reclassifications that are subject to public input and legislative approval.

In addition to water quality classifications, states also create committees or entities responsible for river protection and to balance economic development with these efforts. For example, Arkansas enacted Senate Bill 536 in 2021 to create the Buffalo River Conservation Committee. The Buffalo, one of the country’s last free-flowing rivers and the first to be designated a National River, provides value to the state’s tourism and agricultural industries.

States have also enacted legislation to address information sharing regarding state scenic rivers. For example, Tennessee recently enacted two bills regarding posting information: SB 696 (2017) requires state Scenic River proposals to be posted on the official website within five days of submission; SB 1357 (2019) requires the publication of the Registry of Riparian Lands that are maintained under the state Scenic Rivers Act. Louisiana enacted two bills (HB 411 and SB 490) in 2018 and HB 544 in 2021 related to exemptions to the state Scenic Rivers Act.

Utilizing existing and new data, state policymakers can work with the federal government and local communities to determine protections for these important natural resources. Federal water infrastructure policy will also play a key role in improving drinking water and addressing environmental concerns impacting these waters.

Check out NCSL’s infrastructure resources and watch for updates as NCSL staff continue to track these issues.

Mindy Bridges is a project manager in NCSL’s Environment, Energy and Transportation Program.

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