What is the proposed study?
Proposed study of the
Neches River Wild & Scenic Initiative

Flowing through the heart and history of East Texas, the beautiful Neches River is one of our last wild rivers. Home to many kinds of
Wildlife, the Neches and its bottomland forests draw tourists from across the state and around the world.

Supporters of this study hope that city and county officials, local governing boards, and community leaders will take the time to study this issue before we pass on an opportunity that will protect the crucial water flows from upstream on the Neches into Jefferson County. We also believe that the Wild & Scenic River designation will be great marketing tool for tourism and growth for Southeast Texas.

The Texas Water Development Board has sided with Dallas and North Texas to divert water from the Neches River Basin into the Dallas area. The only thing hindering this transfer of water is the protection that is offered by the creation of the Neches River National Wildlife Refuge on the upper Neches. If Southeast Texas wants to keep a maximum flow water south, we can not look to the State of Texas for protection on this issue. A National Wild and Scenic designation of the Neches River would provide the protection Southeast Texans need to insure our own water needs in the future.

What is being proposed at this time is a study of the Neches for its suitability as a Wild and Scenic River. The value of a study is to give a thorough look at questions which have been raised about the impacts and benefits of naming the Neches a Wild and Scenic River.
In response to the misinformation circulating about what designating the Neches as a Wild and Scenic River would do, Texas Conservation Alliance has carefully researched the issues that have been brought up, including extensive conversations with members of the Interagency Wild and Scenic Rivers Coordinating Council. We have put together the attached set of papers, each designed to address an issue that has been raised. The papers are brief; most are a page or less, a few two pages. But they represent careful research.
 
© 2010 Citizens Protecting the Neches River - All Rights Reserved
 
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Back to Questions
What is the purpose of the Wild and Scenic Rivers Act?
DEVELOPMENT ALONG WILD AND SCENIC RIVERS

The Wild and Scenic Rivers Act affords some protections for a river during the time it is studied for possible inclusion in the Wild and Scenic Rivers System, but those protections allow most development to continue.

The only thing that is flatly prohibited during the study phase is construction of a new hydropower plant on the segments of the river being studied.

If a project on the river involves actual physical construction within the bed and banks of the river below the ordinary high water mark and is also a type of project that already requires a federal permit or receives federal assistance, then that project would trigger a review of potential impacts by the Wild and Scenic River study team during the permitting process. It does not necessarily mean the project would be denied. On the contrary, most projects that do not involve actual damming of the river are usually permitted on Wild and Scenic Rivers, both during the study process and after the river is designated. Examples that have been allowed on Wild and Scenic Rivers include bridges, pipelines, power lines, intake structures, and boat docks.

Structures such as houses, barns, or hunting/fishing camps along the river would not be subject to review by the Wild and Scenic River study team because they do not require a federal permit and are not within the bed and banks of the river.

A specific example relevant to the Neches is a transmission line that is already proposed to cross the river. According to a representative of the Interagency Wild and Scenic Rivers Coordinating Council, is very unlikely even to trigger review by the study team.  Such lines are normally planned to span rivers, with no pole set in the river. If a pole were to be planned to be set actually in the riverbed, then the study team would review the project, but there’s no automatic prohibition.

Oil and gas leasing activities on federal lands would continue, but the National Park Service and U.S. Forest Service would not be allowed to sell or trade away any federal land along the river during the study period.

Examples of adjustments that have been made to projects as a result of review by the Wild and Scenic River team include changes in a bridge design to reduce impacts and altering the seasonal schedule for dredging to avoid peak running times for fish.
 
Important Questions and Answers:

How are the boundaries of a Wild and Scenic River determined, and what is the significance of these boundaries?
BOUNDARIES

The establishment of boundaries for a Wild and Scenic River is somewhat confusing and, indeed, the process for determining boundaries has evolved over the 40-year life of the Wild and Scenic Rivers System.

The Wild and Scenic Rivers Act provides maximum widths for designated rivers, but does not require that each river use that width, only that it not exceed that width.  Boundaries for Wild and Scenic Rivers are primarily to determine management actions on lands that are already federally owned, such as national parks and national forests.  Where private lands are involved, the boundary marks the area within which the manager will focus work with local communities and landowners in developing effective strategies for protection. The boundary also defines the area in which the managing agency has the authority to acquire land, but, significantly, does not require that any of the land be acquired.

Federal managers of Wild and Scenic Rivers have no ability to direct management on private land. Before the Neches River would be added to the National Wild and Scenic River System, a cooperative management plan voluntarily agreed-upon by local landowners and communities would have to be developed. Establishing the boundaries for the river would be accomplished as part of that plan. The Neches will be added to the Wild and Scenic Rivers System only if there is a demonstrated commitment by the local people to
protect the river.

How Boundaries are Chosen
In the past, most Wild and Scenic Rivers flowed largely or entirely through federal land and the maximum width allowed, ¼ mile on either side of the river with no more than 320 acres per mile, was often used.

For private lands, however, an arbitrary boundary is not workable. The boundaries along private lands routinely vary in width, sometimes to reflect the natural terrain of the river, at other times in response to varying land use patterns or varying needs to protect the outstandingly remarkable values of the river.

For some rivers, boundaries have been considered irrelevant. For example, for the Farmington River, which flows primarily through private land, the management plan concluded that defining a distinct lateral boundary would serve no useful purpose and, indeed, could be counter-productive.

Neches Wild and Scenic River Initiative
Rivers are added to the Wild and Scenic Rivers System to protect clearly-identified characteristics of the river and its immediate environs which have "outstandingly remarkable values". During the detailed study conducted before a river is designated, potential values, such as scenery, history, fish and wildlife, or recreation are identified.  Once the outstandingly remarkable values are identified, the river is assessed for its "suitability" for inclusion in the Wild and Scenic Rivers System. A separate boundary may be established for each outstandingly remarkable value, to define useful areas for developing cooperative management strategies to protect the specific values. Or, as in the case of several private lands rivers in the northeast, the study may conclude that boundaries are irrelevant in the specific case.

Discussion of "Bank-to-Bank" Boundaries
Occasionally the suggestion is made that the boundary of a Wild and Scenic River be "riverbank-to-riverbank", that is, within the bed of the river. A federal court has determined that bank-to-bank would be unacceptable as an overall guideline, because it is the intent of the Wild and Scenic Rivers Act to protect the river and its immediate environs, not just the water column.

In the case of private lands rivers, however, the boundary could in places narrow to be bank-to-bank in the river bed, to accommodate a specific situation.

Boundary Determination Not the Same as "Take Lines"
It is important to clarify that boundary determinations are not "take lines". That is, there is no requirement for acquiring the land inside the boundary. Acquisition of up to an average of 100 acres per mile and easement acquisition on any land within the boundary is allowed by the Wild and Scenic Rivers Act. But no acquisition is required.

Boundaries Give No Authority to the Federal Agency to Administer Private Lands
Establishing a boundary for a Wild and Scenic River does not provide the federal administering agency the authority to regulate private lands, or state and local government lands. It simply defines the area under which the federal agency will work with landowners and local governments to protect the river.

Back to Questions
 
Why are we proposing that the Neches River be protected and what are the specifics of our plan?
 
PROTECTING THE NECHES RIVER

The historic Neches River flows 400 miles through the heart of Texas Forest Country to Sabine Lake at its mouth. Its waters nourish the Neches River National Wildlife Refuge, the Davy Crockett and Angelina National Forests, Big Slough and Upland Island Wilderness Areas, Martin Dies Jr. State Park, and the internationally-known Big Thicket National Preserve. It provides freshwater flows and nutrients to shrimp and fish nurseries in the Sabine Lake estuary and to coastal marshes that protect homes and industry from hurricanes. The Neches and its natural areas provide memorable days outdoors for local residents and lure tourists to fish, hunt, hike, camp, and paddle. Its flows dilute effluent for industries along the river.

Texas Conservation Alliance and numerous other citizen groups are proposing that the Neches River be added to the Wild and Scenic Rivers System – (1) to protect the river from dams that would adversely affect its free-flowing state and (2) to highlight its value as a tourist destination.

The criteria for adding a river to the Wild and Scenic Rivers System is that it be freeflowing and have “outstandingly remarkable values” — historic, cultural, geologic, scenic, fish and wildlife, archeological, or recreational.

PROCESS FOR ADDING A RIVER
TO THE WILD AND SCENIC RIVERS SYSTEM

Step 1: Before the Neches can be included in the Wild and Scenic Rivers System, the U.S. Congress must pass a bill authorizing a thorough study of the river’s eligibility and suitability. This legislation would spell out the terms of the study, such as setting up a partnership team including the National Park Service, the U.S. Forest Service, riverside landowners, representatives of counties, cities, school districts, water authorities, port authorities, and navigation districts, timber industry leaders, tourism officials, chambers of commerce, hunters, fishermen, paddlers, and others with a stake in the designation. The study would determine the benefits to the community and identify any impacts that designating the river might have.

Step 2: Led by the National Park Service and the U.S. Forest Service, the study team would carefully craft a cooperative management plan for the river. The study would identify  outstandingly remarkable values of the river and assess which values are adequately protected. It would evaluate what would be needed to protect the other outstandingly remarkable values, considering a variety of means, such as voluntary agreements with landowners. The study would recommend that the Neches be designated a Wild and Scenic River only if a plan can be developed that meets the needs and concerns of the people who live, work, and recreate along the river.

Step 3: If the study results in a recommendation that the Neches be part of the Rivers System, Congress must pass a second bill to make the designation official.  This provides an  added safeguard for landowners and others dependent on the river, as such a bill would be carried by local Members of Congress responsive to their constituents’ concerns.
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SPECIFICS OF ADDING THE NECHES
TO THE WILD AND SCENIC RIVERS SYSTEM







*Source: Interagency Wild and Scenic River Coordinating Council, Reference Guide, A Compendium of Questions & Answers Relating to Wild & Scenic Rivers, January 1999.
PROTECTIONS FOR PRIVATE LANDS AND LANDOWNERS

Many of the nation’s Wild and Scenic Rivers flow largely or entirely through federally-owned land.  When a river proposed for designation as a Wild and Scenic River flows along private land, care must be exercised to see that the designation enhances property values and that no landowner is harmed by the designation.

In the past (for rivers that were primarily on public lands) rivers were usually first added to the Wild and Scenic Rivers System, after which a management plan was written for each river. When a river flows through private lands, however, this leaves too much uncertainty for landowners and other river users.

More and more often, for private lands rivers, the management plans are developed cooperatively under voluntary agreement during the official study process, before the river is added to the System.  This allows landowners, local governments, and users of the river to be the ones to determine its management strategies. If these entities cannot agree on a plan that protects the river, while allowing compatible uses to go forward, then the river is not designated as a Wild and Scenic River.  The management plan providing the protection framework on private lands is a cooperative one under voluntary agreement. The federal government may offer incentive programs or offer to buy land or easements from willing sellers. But federal managers cannot direct management on private land.

Key facts about Wild and Scenic Rivers and private lands:








For additional information about protections for private landowners, see sections titled “Boundaries”, “Eminent Domain”, “Development Along a Wild and Scenic River”, and “Management Plan”.

 
Back to Questions
What impact would the designation of the Neches River as a Wild and Scenic River have on private land and private land owners?
NO EMINENT DOMAIN

It is the stated intention of congressmen along the Neches River and of the staff of the Natural Resources Committee of Congress that if a bill is introduced in Congress to authorize a study of the Neches River as a Wild and Scenic River, that study bill will specify that if any land is acquired it will be from willing sellers only. No condemnation of private land will be allowed.  Texas Conservation Alliance, who is a strong advocate of the Neches Wild and Scenic River study, joins these congressmen in opposing condemnation of private land and pledges to withdraw its support if the study finds that designating the Neches as a Wild and Scenic River will be harmful to landowners.

Past History

Condemnation of land under eminent domain for inclusion in a Wild and Scenic Rivers System has been done only rarely and has almost ceased to be used since the early 1980s.  There are 203 rivers in the Wild and Scenic Rivers System, totaling 12,556 miles.  Of those 203 rivers, only four (4) have had any land condemned in fee for acquisition. The total acreage condemned is 1,413. Of these acres, some were friendly condemnations to clear a title or to allow the federal government to pay more than the appraised value of the land.

Misinformation That Has Circulated

A misunderstanding has arisen concerning eminent domain. Section 6 of the Wild and Scenic Rivers Act allows people who sell land to the federal government for a Wild and Scenic River to retain the use and occupancy of a residence on the land for up to 25 years.  This provision has mistakenly been interpreted as though the federal government were condemning the house after 25 years. This is not the case. Rather, this provision is a favorable circumstance for a landowner, allowing him to sell his land if he chooses while still retaining use of his home or hunting/fishing camp.
 
Would eminent domain be used to confiscate private land if the Neches River receives the Wild and Scenic River designation?
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MANAGEMENT PLANS

A management plan is developed for each river in the National Wild and Scenic Rivers System. In the past, for rivers that flow through federal lands, the management plans were usually written after the river was added to the System. When a river flows through private lands, however, waiting till later to develop the management plan leaves too much uncertainty for landowners and other river users.

More and more often, private lands rivers proposed for the System are having the management plan developed during the study process, before the river is designated. Such rivers are typically protected by methods other than federal land acquisition, which require cooperation among state and local governments, landowners, and other organizations and individuals with an interest in the river.

If Congress authorizes a study of the Neches River as a Wild and Scenic River, the management plan will be a cooperative one developed in consultation with landowners, local governments, river authorities, port authorities, navigation districts, industries along the river, chambers of commerce, tourism officials, timber companies, the Texas Forestry Association, farmers and ranchers, recreational users of the river, state and local elected officials, and other community leaders. This allows landowners, local governments, and users of the river to be the ones to determine the river’s management strategies.

If landowners, local governments, and users of the river cannot agree on a management plan that protects the outstandingly remarkable values of the river, while allowing compatible activities to continue, then the river will not be designated as a Wild and Scenic River.

Suitability Assessment

At this time all that is being proposed for the Neches River is a study of the river for its potential inclusion in the Wild and Scenic Rivers System. The purpose of the study is to find a meaningful and manageable structure for protecting the river and the interests of landowners and river users. If the study results in a recommendation that the Neches be designated a Wild and Scenic River, a second bill would have to be passed by Congress for the Neches to become a Wild and Scenic River. This provides an added safeguard for landowners and others dependent on the river, as such a bill would be carried by local Members of Congress responsive to their constituents’ concerns.

During the study, the National Park Service and U.S. Forest Service, in consultation with landowners, local governments, and users of the river, would identify outstandingly remarkable values of the river, such as scenic, fish and wildlife, historic, archeological, or recreational. The suitability analysis is designed to determine whether the river’s free-flowing character, water quality, and outstandingly remarkable values can be protected without violating the rights of riverside landowners and river users. If not, the Wild and Scenic River designation would not go forward.

It is anticipated that current conditions are adequate to protect some of the values of the Neches River. For example, water quality standards set by the State of Texas for each river segment are likely to be sufficient to protect water quality. Naturally occurring features, such as flooding and steep banks, might preclude some activities harmful to the river without the need for any further protection.

For some values, the study may conclude that additional protections are needed. These can come from a variety of sources.

Examples of Management Strategies for Existing Wild and Scenic Rivers

Along the Rio Grande in Texas, for example, management is determined by voluntary agreements signed with landowners along the river. In return for allowing tourists recreational use of the river, including camping along the banks, the National Park Service assumes liability for any problems relating to park visitors and exempts landowners from park rules that apply to river recreation visitors. These agreements are registered in the courthouse and run with the deed, to give the landowner permanent protection.

On some rivers, the federal government has purchased land to protect the river, but proponents of designating the Neches anticipate little or no land will be acquired. In other situations, federal agencies have purchased scenic or recreational easements or negotiated voluntary agreements with landowners for specific protections. For the Neches, it might be an agreement by a landowner not to log within 100 feet of the river’s edge or a cooperative project under which the federal government would help fund erosion control. All agreements would be voluntary and federal funding is often available to offset costs.

On some occasions conservation organizations have acquired land or easements along Wild and Scenic Rivers from donors or willing sellers. Landowners who voluntarily donate a conservation easement to a land trust or government agency receive a tax deduction for the donation and often reduce their property taxes. Under the conservation easement, the landowner agrees to specific management activities, but retains all other uses of the land.

In the northeastern states, where private lands dominate and where, as in many places, there is resistance to federal control or federal land acquisition, federal agencies have not acquired land on any of the ten rivers added to the Wild and Scenic Rivers System. The primary method of protection in the Northeast is zoning authority that was already held by local townships.

In summary, if a study is authorized for the Neches River, a management plan would be developed during the study process. This would not be a regulatory document – rather a cooperative protection framework for private lands that is achieved by voluntary agreement. The federal government may offer incentive programs or offer to buy land or easements from willing sellers. But federal managers will be given no enforcement authority on private land and no authority to direct management on private land.

 
Back to Questions
How and when is a management plan developed if the river receives the Wild and Scenic River designation?
DREDGING

Dredging is an essential element of maintaining the Sabine-Neches Waterway, the ship channel servicing Beaumont, Port Arthur, and other communities.

The Neches Wild and Scenic River Initiative proposes a study of the Neches upstream of the ship channel for possible inclusion in the National Wild and Scenic Rivers System. The Scenic River proposal was carefully chosen to end the study area at the Interstate 10 bridge near Beaumont, so that there would be no conflict between Wild and Scenic designation and the ship channel that is so vital to the region’s economy.

Maintaining or deepening the ship channel requires dredging. Dredging is not expressly forbidden by the Wild and Scenic Rivers Act, but activities that both (1) require a federal permit, and (2) impact the outstandingly remarkable values for which a river is named to the Wild and Scenic River System, require an assessment of what impacts the activity would have on the river.

Channel Improvement Project

Earlier modeling indicated that channel improvement proposed downstream in the Sabine-Neches ship channel might cause salt water intrusion into the area proposed for Wild and Scenic River designation, lowering its water quality. However, the U.S. Army Corps of Engineers found inaccuracies in the earlier model and has corrected the model. 

According to the U.S. Army Corps of Engineers, there will be no salt water intrusion above the Interstate 10 bridge as a result of the proposed deepening of the Sabine-Neches Waterway1.

Additional Protections

On-going maintenance dredging of the current channel also does not result in salt water intrusion above the Port of Beaumont. Even if it did, this is an already-permitted activity, so would not be subject to review by the Wild and Scenic Rivers team.

Should industries along the river require further reassurance that the Wild and Scenic River proposal would not impact the proposed deepening of the ship channel, the congressional legislation that would authorize study of the Neches as a Wild and Scenic River could be written to exempt the channel improvement project from consideration for its impacts on the Wild and Scenic River.
__________
1 Brown, Gary, et.al., in preparation, Revised Numerical Model Study of Potential Salinity Impacts Due to the Proposed Navigation Improvements to the Sabine-Neches Waterway, Texas. U.S. Army Engineer Research Development Center – Coastal and Hydraulics Laboratory, Vicksburg, Mississippi.
Back to Questions
 
Would a Wild and Scenic River designation prohibit dredging in the Neches-Sabine Waterway (the ship channel servicing Beaumont, Port Arthur and other communities)?
TRIBUTARIES

Designating the Neches as a Wild and Scenic River would have no affect on tributaries unless they are also designated as segments within the Wild and Scenic River.

The state has the authority to enforce water quality standards whether a Wild and Scenic River is in place or not. This is done through the Texas Commission on Environmental Quality. The federal managers of the Wild and Scenic River would have no enforcement authority for water quality.

Designation as a Wild and Scenic River would not change the water quality standards of the river. During the study phase, the study team would look at whether existing state water quality standards are being maintained. If they are not, the study would conclude that the river is not suitable for designation as a Wild and Scenic River.

If the river were designated as a Wild and Scenic River and someone upstream later began violating the existing state water quality standards, the federal managers of the Wild and Scenic River can approach the Texas Commission on Environmental Quality and request the agency to enforce existing laws. As stated above, the Wild and Scenic River managers would have no direct enforcement authority.

Source of information: Interagency Wild and Scenic Rivers Coordinating Council, composed of representatives of the federal agencies which manage Wild and Scenic Rivers System
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What affect would a Wild and Scenic River designation have on tributaries of the Neches River?
UPSTREAM RESERVOIRS

The heart of the Wild and Scenic Rivers program is keeping rivers free-flowing.  Designating the Neches River as a National Wild and Scenic River would protect industry, business, and tourism in Jefferson and nearby counties by prohibiting construction of reservoirs proposed upstream on the Neches. Most of the water from the proposed reservoirs would be piped outside East Texas to Dallas-Fort Worth or other urban areas. Diverting water to other parts of the state would reduce the flow of the Neches, impacting industry, business, and nature downstream.

The Lower Neches Valley Authority has proposed construction of Rockland Dam, which would flood 125,000 acres of timber, agriculture, and hunting land along the middle Neches. 80% of the water from the new reservoir would be sold outside of the Neches Basin, significantly reducing the flow of the Neches downstream. Two other proposed reservoir projects, Fastrill on the north end of the river and raising Dam B to increase the size of B.A. Steinhagen Reservoir, would further reduce Neches flows.

Economic Importance of Neches River Flows

Industries along the lower Neches rely on Neches River flows to dilute effluent. Marshes that help protect Southeast Texas cities for hurricane storm surges depend on freshwater inflows from the Neches to maintain marsh vegetation. Waterfowl hunting, shrimping, and commercial and sport fishing in Sabine Lake would be impacted if Neches River flows were diminished. The Big Thicket National Preserve, which draws more than 100,000 tourists per year to the area, is heavily dependent on Neches River flows to nourish its exceptionally diverse habitat.

Southeast Texas Does Not Need New Reservoirs for Water Supply

East Texas and Southeast Texas have no need for new reservoir development. Current supplies in Sam Rayburn and Toledo Bend Reservoirs are sufficient to far more than meet any foreseeable demand for future water. Should Southeast Texas ever need additional water from the Neches, it could be drawn directly from the river (as is currently done) without building an upstream reservoir.
WATER RIGHTS  

Existing water rights would not be affected if the Neches River were designated as a Wild  and Scenic River.  

Cities, industries, and other water rights holders would continue to divert and use water according to their existing permits from the State of Texas.  The authority to permit water rights for the river would remain the purview of the state. 

Under the Wild and Scenic Rivers Act, the federal government may acquire water rights for a Wild and Scenic River through the states water appropriation system.  In what are called prior appropriation states (which includes Texas), any water rights acquired by the federal government would be considered junior to existing water rights. 

To date, federal water rights have been reserved on rivers in only six of the thirty-seven states which have Wild and Scenic Rivers.  The Wild and Scenic Rivers Act restricts the amount the federal government can acquire to the minimum necessary to preserve the free-flowing condition of the river and to preserve the values for which the river was designated.

Source of information:  Interagency Wild and Scenic Rivers Coordinating Council, composed of representatives of the federal agencies which manage Wild and Scenic Rivers System
Back to Questions
 
Would a Wild and Scenic River designation prohibit construction of new reservoirs upstream on the Neches River?
Back to Questions
 
Does the Wild and Scenic River designation have any affect on water rights?
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