Connecting federal employees, scientists, educators, and the public with their wilderness heritage
Miscellaneous Special Provisions Toolbox
The Miscellaneous Special Provisions Toolbox is a 'work in progress' and
represents only the information available. In addition to the resources provided here, you may also be able to obtain advice and recommendations through discussion on
Wilderness Connect . Date of last update: 3/6/12.
Introduction
Overview This toolbox contains materials pertaining to the management of Miscellaneous Special Provisions as referenced in Sections 4(c), 4(d)(1), 4(d)(4)(1), and 4(d)(7) of the Wilderness Act of 1964. Expanding the outline of this Toolbox will give you an idea of the topics covered. It does NOT include rights-of-way associated with access to inholdings or mineral claims as described in Section (5). Those are covered in the INHOLDING ACCESS Toolbox. Other Special Provisions also can be found their own Toolboxes:COMMERCIAL SERVICES (OUTFITTER AND GUIDE) Toolbox FIRE MANAGEMENT Toolbox FISH AND WILDLIFE RESOURCES Toolbox GRAZING Toolbox MINERALS Toolbox However, this Toolbox does contain two documents from the University of Colorado Natural Resources Law Center on a wide range of Special Provisions, including those that have their own Toolboxes. For these reference materials, see the last section of this Toolbox. NOTE: Though the Arthur Carhart National Wilderness Training Center has made every effort to provide materials that are legally accurate, the laws affecting many of these special provisions in wilderness and their implications for management are extremely difficult to understand clearly. And the law that designated your wilderness may very well contain additional language describing rights or other special provisions unique to your wilderness. It is critical that you contact your solicitor or general counsel if these are an issue in your wilderness.
Basis in the Wilderness Act and meaning of law
Relevant Case Law
Overview of pertinent cases
IBLA 91-48 (Williams & Brown)
High Sierra Hikers v. USFS (Emigrant Dams)
Management Regulations, Policies, and Practices
BLM
Structures and installations
Policy 6340 1.6.B.2.i (Structures) and j (Installations)
Policy 6340 1.6.C.5.d Structures and Installations (Cultural Resources)
Policy 6340 1.6.C.8.d Grazing Facilities
Water rights
43 CFR 6304.24
Policy 6340 1.6.C.16. Rights-of-Way
Policy 6340 1.6.C.8.d. Grazing Facilities
Aircraft, airfields and landing strips
43 CFR 6304.21
Policy 6340 1.6.C.2. Aircraft
FWS
Policy 610 FW 5
FS
Monitoring sites
Snow Measurement Sites The Wilderness Act of 1964 does not directly address snow measurement sites but does contain direction that is relevant to this activity." and these shall be administered for the use and enjoyment of the American people in such manner as will leave them unimpaired for future use and enjoyment as wilderness, and so as to provide for the protection of these areas, the preservation of their wilderness character, and for the gathering and dissemination of information regarding their use and enjoyment as wilderness; "...except as necessary to meet minimum requirements for the administration of the area for the purpose of this Act,… there shall be no temporary road, no use of motor vehicles, motorized equipment or motorboats, no landing of aircraft, no other form of mechanical transport, and no structure or installation within any such area." "Except as otherwise provided in this Act, each agency administering any area designated as wilderness shall be responsible for preserving the wilderness character of the area and shall so administer such area for such other purposes for which it may have been established as also to preserve its wilderness character." "Except as otherwise provided in this Act, wilderness areas shall be devoted to the public purposes of recreational, scenic, scientific, educational, conservation, and historical use."
Policy 2323.44a
Management Practices Weather monitoring, especially snowfall and water flow, has often involved placing electronic equipment in high elevation headwaters locations or in streams. Snow measurement (or Sno-Tel) sites exist in wilderness areas operated by the Natural Resource Conservation Service or other agencies. Down stream farmers and ranchers have found this information essential. Remote sensing stream monitoring gauges have also been used to warn of flash floods. Maintenance of structures or installations can generate proposals for use of motorized equipment, aircraft which should be addressed using a Minimum Requirements Decision Guide or similar analysis. The continued need for installations within wilderness should be addressed to determine if a data correlation process could be implemented to relocate the facility outside wilderness.
Communication sites
Policy 2320.3.10
Policy 2324.33g and 34
Management Practices Cell phone technology and use has become so widespread that many visitors carry cell phones as emergency insurance. Proposals to build cell phone towers in wilderness citing the need for cell phone coverage for emergencies are not uncommon. In addition, some units have proposed construction and/or maintenance of radio repeater facilities in wilderness to insure adequate communications for employees, contractors, and volunteers in wilderness for safety purposes. Cell phone towers in wilderness are not constructed for visitor use while in the wilderness. Instead, managers make every effort to provide information to visitors on the inherent naturally occurring risks of wilderness use. Satellite phones or rescue beacons may be an alternative for some. Adequate communications for personnel working in wilderness is essential to meet safety objectives. Managers typically use one or more systems of 2-way radios, cell phones, satellite phones with maps of known 'dead spots' and routine check-in procedures to insure necessary communication capabilities. The construction of cell phone towers in wilderness to provide service outside of wilderness is not allowed. There is a variation of this issue which involves personal use of cell phones, satellite phones, walkie-talkies, GPS units and a variety of other electronic devices which can distract from the wilderness experience of others. These items, considered 'personal use' items, are not prohibited by law or agency policy, even if they contain small motors.
Water rights
Water Resources The Wilderness Act of 1964 states that:"Within wilderness areas in the national forests designated by this Act, (1) the President may, within a specific area and in accordance with such regulations as he may deem desirable, authorize prospecting for water resources, the establishment and maintenance of reservoirs, water-conservation works, power projects, transmission lines, and other facilities needed in the public interest, including the road construction and maintenance essential to development and use thereof, upon his determination that such use or uses in the specific area will better serve the interests of the United States and the people thereof than will its denial;..." "Nothing in this Act shall constitute an express or implied claim or denial on the part of the Federal Government as to exemption from State water laws."
Policy 2323.41; .42; .43a, c, d; .44
Management Practices A common practice in the west early in the 1900's was to reservoir lakes. This involved finding a suitable high elevation lake with a natural dam that could be built up and a natural outlet that could be lowered to allow more water to be stored for release in the summer irrigating season. This system also often involved ditches to transmit irrigation water out of its natural drainage to be routed where a rancher or farmer wanted it applied. Existing reservoirs, ditches, water catchments, and related facilities for the control or use of water can be maintained or reconstructed if they meet a public need, or are part of a valid existing right. These water developments may require maintenance, per the Dam Safety Act, if they are located upstream from populated areas. Motorized equipment and mechanical transportation for the maintenance of water development structures is not allowed unless it was used for this purpose before the area was designated wilderness and it is determined to be the minimum necessary tool or technique. Dam maintenance, stabilization, and some removal operations have been accomplished using traditional skills and non-motorized skills tools. Watershed restoration is permitted only when human activities have caused soil deterioration or other loss of wilderness values, where watershed conditions could cause unacceptable environmental impacts or threaten life or property outside the wilderness, and where natural revegetation is insufficient. Such restoration activities are rare but have been implemented to mitigate the effects of fire or to address non-native invasive plant issues.
Examples of Plans, MOUs, and Agreements - documents or links
Border MOU - 2006 (Dept. of Homeland Security, USDA, USDI)
Border waiver from environmental laws - 2008 (Dept. Homeland Security)
Resources and References
Wilderness Special Provisions Database
Wilderness Stewardship Reference System (WSRS)
Motorized Uses: Aircraft/helicopter
Motorized Uses: Motorboats
General Administration: Water Developments
General Administration: Water Rights
Natural Resource Stewardship: Weather Monitoring
Public Values and Uses: Structure/installation - mgmt. facilities
University of Colorado Special Use References (2004)
Special Use Provisions in Wilderness Legislation
Special Uses in Wilderness Areas: Management Survey
Wilderness, Water, and Climate Change (PowerPoint by Randy Bramer, OGC) (26.9 MB)