Wild and Scenic Rivers

DEPARTMENT OF THE INTERIOR

43 CFR Parts 6400 and 8350

RIN 1004-AC87

Wild and Scenic Rivers

AGENCY: Bureau of Land Management, Interior.

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: In response to President Clinton's Government-wide regulatory

reform initiative, the Bureau of Land Management (BLM) proposes to

write the regulation on wild and scenic rivers in a straightforward

``Plain English'' style. This regulation would establish uniform

standards and procedures by which BLM will consider Federal licensing

of, or assistance to, water resource projects on components affecting

Wild and Scenic Rivers or Study Rivers administered by the Secretary of

the Interior, through the Director, BLM. The regulation would harmonize

BLM's procedures and definitions with those of the U.S. Forest Service

to streamline and improve the administration of the Wild and Scenic

Rivers System.

DATES: Submit comments by October 10, 1996. BLM may, but need not,

consider comments received or postmarked after this date in preparing

the final rule.

ADDRESSES: Commenters may hand-deliver comments to the Bureau of Land

Management, Administrative Record, Room 401, 1620 L St., NW,

Washington, DC; or mail comments to the Bureau of Land Management,

Administrative Record, Room 401LS, 1849 C Street, NW, Washington, DC

20240. Commenters may transmit comments electronically via the Internet

to: [email protected] [For Internet, please include

``Attn: AC87'', your name and address in your message.]

Comments will be available for public review at the L Street

address during regular business hours, from 7:45 a.m. to 4:15 p.m.,

Monday through Friday, except holidays.

FOR FURTHER INFORMATION CONTACT:

Gary Marsh, Special Areas and Land Tenure Team, (202) 452-7795.

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures

II. Discussion of Proposed Rule

III. Procedural Matters

I. Public Comment Procedures

Written comments on the proposed rule should be specific, focus on

issues pertinent to the proposed rule, and explain the reason for any

recommended change. Where possible, comments should reference the

specific section or paragraph of the proposal being addressed. If

comments are received or postmarked after the close of the comment

period (see DATES) or delivered to an address other than the one listed

above (See ADDRESSES), BLM will not necessarily consider or include

them in the Administrative Record for the final rule.

II. Discussion of Proposed Rule

This proposed rule follows up an Advance Notice of Proposed

Rulemaking that the BLM published in the June 5, 1996, Federal Register

(61 FR 28546). That advance notice notified the public of the

restructuring of 43 CFR Parts 6000-9000, and of BLM's plans to publish

proposed rules for those parts in the near future. BLM now proposes to

renumber and revise present Part 8350 of 43 CFR under the authority of

Section 7 of the Wild and Scenic Rivers Act, as amended (16 U.S.C.

1278). That Act directs Federal agencies to protect the free-flowing

condition and other values of designated rivers and congressionally-

authorized study rivers from the harmful effects of proposed water

resources projects.

The proposed rule sets forth applicable procedures that the

Director, BLM, uses in administering Federal assistance for proposed

water resources projects affecting Wild and Scenic Rivers or Study

Rivers. This regulation is consistent with that of the Forest Service,

U.S. Department of Agriculture, at 36 CFR Part 297.

III. Procedural Matters

National Environmental Policy Act of 1969

The BLM has prepared a draft environmental assessment (EA), and has

made a tentative finding that the final rule would not constitute a

major federal action significantly affecting the quality of the human

environment under section 102(2)(C) of the National Environmental

Policy Act of 1969

[[Page 47727]]

(NEPA), 42 U.S.C. 4332(2)(C). The BLM anticipates making a Finding of

No Significant Impact (FONSI) for the final rule in accordance with the

BLM's procedures under NEPA. The BLM has placed the EA on file in the

BLM Administrative Record at the address specified previously. The BLM

will complete an EA on the final rule and make a finding on the

significance of any resulting impacts prior to promulgation of the

final rule.

Paperwork Reduction Act

The proposed rule does not contain information collection

requirements that the Office of Management and Budget must approve

under 44 U.S.C. 3501 et seq.

The Regulatory Flexibility Act

BLM has determined that the proposed rule will not have a

significant economic impact on a substantial number of small entities

under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

Unfunded Mandates Reform Act of 1995

This proposed rule does not include any Federal mandate that may

result in expenditures of $100 million or more in any one year by

State, local, and tribal governments in the aggregate, or by the

private sector. Therefore, a Section 202 statement under the Unfunded

Mandates Reform Act is not required.

Executive Order 12612

BLM has analyzed this rule under the principles and criteria in

Executive Order 12612 and has determined that the rule does not have

sufficient federalism implications to warrant the preparation of a

Federalism Assessment.

Executive Order 12630

BLM certifies that the rule does not represent a governmental

action capable of interference with constitutionally protected property

rights. Thus, a Takings Implication Assessment need not be prepared

under Executive Order 12630, Governmental Actions and Interference with

Constitutionally Protected Property Rights.

Executive Order 12866

The proposed rule does not meet the criteria for significant

regulatory action requiring review by the Office of Management and

Budget under Executive Order 12866, Regulatory Planning and Review.

Executive Order 12988

The Department has determined that this rule meets the applicable

standards in Sections 3(a) and 3(b)(2) of Executive Order 12988, Civil

Justice Reform.

Author

The principal author of this rule is Frances Watson, Regulatory

Management Team, (202) 452-5006.

List of Subjects

43 CFR Part 6400

National Wild and Scenic Rivers System.

43 CFR Part 8350

National Trails System, National Wild and Scenic Rivers System,

Penalties, Public lands.

For the reasons discussed in the preamble and under the authority

of 43 U.S.C. 1740, BLM proposes to amend chapter II of Title 43 of the

Code of Federal Regulations as set forth below:

1. Part 8350 is removed.

2. A new part 6400 is added to read as follows:

PART 6400--WILD AND SCENIC RIVERS

Subpart A--Introduction

Sec.

6400.1 What is the purpose of part 6400?

6400.2 How are key terms in this part defined?

Subpart B--Proposed Water Resources Projects

6400.10 What procedures must a Federal department or agency follow

to receive consideration from BLM before providing assistance to, or

authorization of, a water resources project?

6400.11 Under what conditions will the Director approve Federal

assistance to, or authorization of, a water resources project?

6400.12 What is the time limit for the Director to approve Federal

assistance to, or authorization of, a water resources project?

Authority: 16 U.S.C. 1271-1288.

Subpart A--Introduction

Sec. 6400.1 What is the purpose of part 6400?

Part 6400 specifies BLM policies and procedures for administering

Federal assistance or licensing of water resources projects affecting

Wild and Scenic Rivers or Study Rivers.

Sec. 6400.2 How are key terms in this part defined?

As used in part 6400:

Act means the Wild and Scenic Rivers Act (82 Stat. 906, as amended;

16 U.S.C. 1271-1288).

Construction means any action carried on with Federal assistance

affecting the free-flowing characteristics or the outstandingly

remarkable values of a Wild and Scenic River or Study River.

Federal assistance means any assistance by an authorizing agency

before, during, or after construction. Such assistance may include,

among other examples, a license, permit, preliminary permit, or other

authorization granted by the Federal Energy Regulatory Commission

(FERC) under sections 4 (e) and (f) of the Federal Power Act (16 U.S.C.

797); a license, permit or other authorization granted by the Corps of

Engineer, Department of the Army, under the Rivers and Harbors Act of

1899 (33 U.S.C. 401 et seq.) and section 404 of the Clean Water Act (33

U.S.C. 1344); or any other license, permit, assistance, or

authorization required by a Federal department or agency.

Free-flowing means existing or flowing in a natural condition

without impoundment, diversion, straightening, rip-rapping, or other

modification of the waterway, as defined by section 16(b) of the Act

(16 U.S.C. 1286(b)).

Study period means the time during which the BLM will study an

eligible river as a potential component of the Wild and Scenic Rivers

System. The study period may last up to 3 additional years for

Congressional consideration of a report recommending designation, or

such additional time as may be provided by statute.

Study river means a river and the adjacent area within one quarter

mile on each side of the river from the ordinary high water mark (or

other width as identified by the Congress), which is designated for

study as a potential addition to the National Wild and Scenic Rivers

System under section 5(a) of the Act.

Water resources project means any project under the Federal Power

Act (41 Stat. 1063, 16 U.S.C. 791a) as amended, or other construction

of developments which may affect the free-flowing characteristics of a

Wild and Scenic River or Study River. Examples could include, among

others, dams, water conduits, reservoirs, powerhouses, transmission

lines, water diversion projects; dredge and fill operations, fisheries

habitat and watershed restoration/enhancement projects; bridge and

other roadway construction/reconstruction projects; bank stabilization

projects; channelization projects; recreation facilities such as boat

ramps and fishing piers; and activities such as suction dredging

associated with mining.

Wild and scenic river means a river and the adjacent area within

the boundaries of a component of the National Wild and Scenic Rivers

System.

[[Page 47728]]

Subpart B--Proposed Water Resources Projects

Sec. 6400.10 What procedures must a Federal department agency follow

to receive consideration from BLM before providing assistance to, or

authorization of, a water resources project?

(a) Advance notice. (1) Federal department sand agencies must

notify the Director, BLM, as soon as possible of their intention to

issue a license, permit, or other authorization for a federally-

assisted water resources project on any portion of a Wild and Scenic

River or Study River administered by the BLM.

(2) Agencies must send advance notice at least 60 days before the

date of the proposed action.

(3) Agencies should send the notice to the Director, Bureau of Land

Management, 1620 L Street NW., WO-420, Mail stop 204LS, Washington, DC

20240-9998.

(b) Contents of notice. Include the following information in the

notice:

(1) Name and location of affected river;

(2) Location of the project;

(3) Nature of the permit or other authorization proposed to be

issued;

(4) Description of the proposed activity; and

(5) Any relevant information, such as plans, maps, environmental

studies, assessments, or impact statements, alternatives, and

mitigating measures.

Sec. 6400.111 Under what conditions will the Director approve Federal

assistance to, or authorization of, a water resources project?

(a) The Director will approve Federal assistance to, or

authorization of, a water resources project if he or she determines

that:

(1) The water resources project will not have a direct and adverse

effect on the values for which a Wild and Scenic River was designated

or Study River was authorized, when any portion of the project is

within the boundaries of such river; or

(2) The effects of the water resources project will neither invade

nor unreasonably diminish the scenic, recreational, and fish and

wildlife values of a Wild and Scenic River, when any portion of the

project is located above, below, or outside the Wild and Scenic River;

or

(3) The effects of the water resources project will neither invade

nor diminish the scenic, recreational, and fish and wildlife values of

Study River when the project is located above, below, or outside the

Study River during the study periods; and

(4) The water resources project is in compliance with the National

Environmental Policy Act (NEPA).

(b) If the proposed assistance or authorization fails to meet the

above conditions, the Director will disapprove an authorization for a

water resources project.

Sec. 6400.12 What is the time limit for the Director to approve

Federal assistance to, or authorization of, a water resources project?

The Director must approve or disapprove an authorization for a

water resources project within 60 calendar days of receiving the

advance notice. The Director, to the extent possible, will expedite

consideration of a notice of intent for a project it is needed to

address an emergency.

Dated: August 27, 1996.

Sylvia V. Baca,

Deputy Assistant Secretary, Land and Minerals Management.

[FR Doc. 96-22706 Filed 9-9-96; 8:45 am]

BILLING CODE 4310-84-M