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Monday, March 14, 2011

Wilderness: Legislation and Issues in the 112th Congress

Ross W. Gorte
Specialist in Natural Resources Policy

Kristina Alexander
Legislative Attorney

Sandra L. Johnson
Information Research Specialist

The Wilderness Act established the National Wilderness Preservation System in 1964 and directed that only Congress can designate federal lands as part of the system. Free-standing bills to designate wilderness areas are typically introduced and considered in each Congress; such bills are not amendments to the Wilderness Act, but typically refer to the act for management guidance and sometimes include special provisions. Several wilderness bills have been introduced in the 112th Congress.

Wilderness designation can be controversial. The designation generally prohibits commercial activities, motorized access, and human infrastructure from wilderness areas, subject to valid existing rights. Advocates propose wilderness designations to preserve the generally undeveloped conditions of the areas. Opponents see such designations as preventing certain uses and potential economic development in rural areas where such opportunities are relatively limited.

Most bills direct management of designated wilderness in accordance with the Wilderness Act. However, proposed legislation also often seeks a compromise among interests by allowing other activities in the area. Typically, pre-existing uses or conditions are allowed to continue. Sometimes this authority is temporary, with nonconforming uses to be halted and/or nonconforming conditions to be rectified. At other times, the authority is permanent, with limited access permitted for specific areas, uses, and times, or with the authority to operate and maintain pre-existing infrastructure. Wilderness bills often contain additional provisions, such as prohibiting buffer zones around the wilderness, or providing special access for particular purposes, such as border security or Native American religious needs. Water rights possibly associated with wilderness designations have also been controversial, and many existing statutes have addressed wilderness water rights in various ways.

Other controversies regarding wilderness have focused on management by federal agencies, such as how and when an agency releases a wilderness study area that is not recommended as wilderness. Successful litigation over Forest Service wilderness recommendations in 1980 led Congress to develop “release language” in legislation. This provision excused the Forest Service from reviewing wilderness potential and from protecting wilderness conditions in the initial land management plans for national forests.

The issue of agency management is more contentious for Bureau of Land Management (BLM) lands, for two reasons. First, BLM is required by law to protect the wilderness characteristics of its wilderness study areas (WSAs) until Congress determines otherwise. Second, in contrast to Forest Service planning, the BLM planning process is not cyclical and BLM planning guidance has not required wilderness consideration in planning. A 1996 attempt by the agency to expand the original WSAs was challenged in court, and a 2003 settlement agreement resulted in different BLM wilderness guidance prohibiting additional administrative WSA designations and protections. In December 2010, however, Interior Secretary Ken Salazar issued an order directing BLM to maintain a wilderness inventory, to consider wilderness potential in planning, and to protect wilderness characteristics of the inventoried areas unless alternative management is deemed appropriate. This policy has received both praise and objections from some Members of Congress, as well as various interest groups.

Date of Report: March 2, 2011
Number of Pages: 14
Order Number: R41610
Price: $29.95

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