Wild and Scenic Rivers

DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 39

RIN 1004-AC87

Wild and Scenic Rivers

AGENCY: Offie of the Secretary, Interior.

ACTION: Proposed rule.

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SUMMARY: The Office of the Secretary publishes this proposed rule in

response to comments received on a proposed rule published by the

Bureau of Land Management (BLM), and to improve Departmental

consistency among Wild and Scenic River-administering agencies.

Consistent with President Clinton's Government-wide regulatory reform

initiative, this proposed rule is written in a straightforward ``Plain

English'' style. This rule would establish uniform standards and

procedures by which the Department of the Interior, through its

agencies which administer rivers in the National Wild and Scenic Rivers

System (Bureau of Land Management, U.S. Fish and

[[Page 67835]]

Wildlife Service and National Park Service), will consider Federal

licensing of, or assistance to, water resources projects affecting

designated wild and Scenic Rivers or congressionally authorized Study

Rivers.

This proposed rule also withdraws the proposed rulemaking published

in the Federal Register by the BLM on September 10, 1996 (61 FR 47726).

This proposed rule would harmonize Interior's procedures and standards

with those of the U.S. Forest Service in order to streamline and

improve the administration of the National Wild and Scenic Rivers

System.

DATES: Submit comments on or before February 8, 1999. The Department of

the Interior may not consider comments received or postmarked after

this date in preparing the final rule.

ADDRESSES: Mail comments to John Haubert, Room 3230, 1849 C Street, NW,

Washington, DC 20240. Commenters may transmit comments electronically

via the Internet to: John__ H[email protected] [For Internet, please

include ``Attn: Proposed DOI Wild and Scenic Rivers Rulemaking,'' your

name and address in your message.]

FOR FURTHER INFORMATION CONTACT: John Haubert, NPS, 202-208-4290. E-

mail: [email protected]

For a complete listing of designated Wild and Scenic Rivers, visit

the DOI website at: http;//www.nps.gov/rivers.

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 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. The

Secretary may not necessarily consider or include in the Administrative

Record for the final rule comments received after the close of the

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

one listed above (see ADDRESSES).

II. Discussion of Proposed Rule

This proposed rule is a ``follow-up'' to the Proposed Rulemaking

that the BLM published in the September 10, 1996, Federal Register (61

FR 47726). That publication notified the public of a similar rulemaking

process (applicable only to BLM-administered rivers), and invited

public comments for 30 days, ending on October 10, 1996. In response to

several requests, BLM reopened the comment period in the November 4,

1996, Federal Register (61 FR 56651), for an additional 30 days, ending

on December 4, 1996. Many respondents suggested that a single rule be

adopted by the four Federal Wild and Scenic River administering and/or

managing agencies (U.S. Forest Service, BLM, U.S. Fish and Wildlife

Service, and National Park Service). This proposed rule responds to

that and other comments received by the BLM in its earlier proposed

rule. The proposed rule applies only to Department of the Interior

agencies and does not apply to the Forest Service, which is an agency

of the Department of Agriculture.

The Secretary of the Interior proposes to issue this rule under the

authority of Section 7 of the Wild and Scenic Rivers Act, as amended

(16 U.S.C 1278). Section 7(a) provides as follows:

The Federal Energy Regulatory Commission shall not license the

construction of any dam, water conduit, reservoir, powerhouse,

transmission line, or other project works under the Federal Power

Act (41 Stat. 1063), as amended (16 U.S.C. 791a et seq.), on or

directly affecting any river which is designated in section 1274 of

this title as a component of the national wild and scenic rivers

system or which is hereafter designated for inclusion in that

system, and no department or agency of the United States shall

assist by loan, grant, license, or otherwise in the construction of

any water resources project that would have a direct and adverse

effect on the values for which such river was established, as

determined by the Secretary charged with its administration. Nothing

contained in the foregoing sentence, however, shall preclude

licensing of, or assistance to, developments below or above a wild,

scenic or recreational river area or on any stream tributary thereto

which will not invade the area or unreasonably diminish the scenic,

recreational, and fish and wildlife values present in the area on

the date of designation of a river as a component of the National

Wild and Scenic Rivers System. No department or agency of the United

States shall recommend authorization of any water resources project

that would have a direct and adverse effect on the values for which

such river was established, as determined by the Secretary charged

with its administration, or request appropriations to begin

construction of any such project, whether heretofore or hereafter

authorized, without advising the Secretary of the Interior or the

Secretary of Agriculture, as the case may be, in writing of its

intention to do so at least sixty days in advance, and without

specifically reporting to the Congress in writing at the time it

makes its recommendation or request in what respect construction of

such project would be in conflict with the purposes of this chapter

and would affect the component and the values to be protected by it

under this chapter.

Section 7(b), which applies to congressionally authorized study rivers,

contains identical language except for the deletion of the word

``unreasonably'' before the word ``diminish'' in the second sentence.

The Wild and Scenic Rivers Act directs Federal agencies to protect

the free-flowing condition and other values of designated rivers and

congressionally authorized study rivers from the adverse effects of

water resources projects. The proposed rule defines ``water resource

project'' as any construction activity or project that would affect the

free-flowing characteristics of a river. The term ``free-flowing'' is

defined in the Act and means `existing or flowing in natural condition

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

modification of the waterway.' Thus, a ``water resources project'' is

defined in this proposed rule as any construction or project within the

bed or banks of a river which would modify the waterway and therefore

affect the free-flowing characteristics of the river.

Section 7 of the Wild and Scenic Rivers Act (16 U.S.C. 1278), as

amended, requires river administering agencies to review proposed

authorization or federal assistance to water resources projects on or

affecting any designated Wild and Scenic River or on any river

congressionally authorized for study for possible inclusion in the Wild

and Scenic Rivers System under Section 5(a) of the Act. This proposed

rule provides procedures and standards for Department of the Interior

river administering agencies to ensure compliance with the requirements

of Section 7 of the Wild and Scenic Rivers Act for water resources

projects.

The proposed rule sets forth applicable procedures that the

Secretary of the Interior, through the applicable Wild and Scenic river

administering agencies, i.e., BLM, U.S. Fish and Wildlife Service

(FWS), and National Park Service (NPS), would use for conducting

analyses under Section 7 of the Wild and Scenic Rivers Act for proposed

for proposed water resources projects to determine whether there would

be an adverse effect on the designated Wild and Scenic River or

congressionally authorized Study River. These regulations are

consistent with those of the Forest Service, U.S. Department of

Agriculture, at 36 CFR part 297.

III. Procedural Matters

National Environmental Policy Act of 1969

The Department of the Interior has prepared an environmental

assessment (EA), in accordance with Section

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102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C.

4331(2)(C)). The Department of the Interior anticipates making a

Finding of No Significant Impact (FONSI) for the final rule in

accordance with the Department's procedures for implementing NEPA. The

EA is on file in the Administrative Record at the address previously

specified.

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

The Department of the Interior has determined that the proposed

rule will not have a significant economic effect on a substantial

number of small entities under the Regulatory Flexibility Act (5 U.S.C.

601 et seq.). The scope of the proposed rule is limited to those

Federal departments or agencies charged with reviewing the proposed

authorization of, or Federal assistance to, water resources projects

affecting designated Wild and Scenic Rivers or congressional authorized

Study Rivers. Therefore, no small entities are affected by the proposed

rule.

Unfunded Mandates Reform Act of 1995

The Interior Department's operating procedures in 43 FR 39 will not

result in any unfunded mandate to State, local, or tribal governments,

or to the private sector, of $100 million or more in any one year.

Executive Order 12612

The Department of the Interior 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

This proposed rule does not represent a government action capable

of interference with constitutionally protected property rights. Since

the primary functions of the rule is to establish uniform Department

operating procedures regarding authorization of, or Federal assistance

to, water resources projects affecting designated Wild and Scenic

Rivers or congressionally authorized Study Rivers, there will be no

private property rights impaired as a result. Therefore, the Department

of the Interior has determined that the proposed rule would not cause a

taking of private property, or require further discussion of takings

implications under this Executive Order.

Executive Order 12866

According to the criteria listed in section 3(f) of Executive Order

12866, the Department of the Interior has determined that this proposed

rule is a significant regulatory action.

Authors

The principal authors of this rule are Gary G. Marsh and Frances

Watson, Bureau of Land Management, John Haubert, National Park Service,

and Craig Czarnecki, U.S. Fish and Wildlife Service.

List of Subjects in 43 CFR Part 39

Wild and scenic rivers.

Dated: September 29, 1998.

Bruce Babbitt,

Secretary of the Interior.

For the reason discussed in the preamble and under the authority of

the Wild and Scenic Rivers Act (16 U.S.C. 1278), the Department of the

Interior proposes to amend title 43 of the Code of Federal Regulations,

as set forth below:

1. A new part 39 is added to Subtitle A to read as follows:

PART 39--WILD AND SCENIC RIVERS

Subpart A--Water Resources Projects

Sec.

39.1 What is the purpose of part 39?

39.2 How are key terms in this part defined?

39.3 What procedures must a Federal department or agency follow to

receive consideration from the applicable Wild and Scenic River

administering agency before providing Federal assistance, to or

authorization of, a water resources project?

39.4 Under what conditions will the applicable Wild and Scenic

River administering agency consent to Federal assistance to, or

authorization of, a water resources project?

39.5 What is the estimated time for the applicable Wild and Scenic

River administering agency to review a proposal to provide Federal

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

Subpart B--[Reserved]

Authority: 16 U.S.C. 791a; 16 U.S.C. 1271-1287; 33 U.S.C. 401 et

seq.; 33 U.S.C. 1344.

Subpart A--Water Resources Projects

Sec. 39.1 What is the purpose of this part?

This part specifies the Department of the Interior (DOI) policies

and procedures for conducting analyses under Section 7 of the Wild and

Scenic Rivers Act for proposed water resources projects affecting Wild

and Scenic Rivers or congressionally authorized Study Rivers that the

DOI administers.

Sec. 39.2 How are key terms in this part defined?

As used in this part:

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

16 U.S.C. 1271-1287.

Applicable Wild and Scenic River administering agency means an

agency of the DOI responsible for managing designated Wild and Scenic

Rivers or congressionally authorized Study Rivers (i.e., Bureau of Land

Management, National Park Service, and U.S. Fish and Wildlife Service).

Construction means any action carried on with Federal assistance

affecting the free-flowing characteristics or the scenic or natural

values of a Wild and Scenic River or Study River.

Federal assistance means any assistance associated with a water

resources project provided by any Federal department or agency. Such

assistance may include, but is not limited to, a license, permit, or

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

Engineers, 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, grant, or loan provided, or

other authorization required by a Federal department or agency.

Free-flowing means ``existing or flowing in a natural condition

without impoundment, diversion, straightening, riprapping, or other

modification of the waterway'' (16 U.S.C. 1286(b)).

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

(unless otherwise provided for by law) which is designated for study as

a potential addition to the National Wild and Scenic Rivers System

pursuant to Section 5(a) of the Act.

Study period means the time required to complete a study authorized

by Section 5(a) of the Wild and Scenic Rivers Act. The study period

lasts for 3 years after the President sends a report with his

recommendations to the Congress.

Water resources project means any dam, water conduit, reservoir,

powerhouse, transmission line, or other project works under the Federal

Power

[[Page 67837]]

Act of 1995, as amended (41 Stat. 1063; 16 U.S.C 791a); or any project

or construction activity that would affect free-flowing

characteristics, as that term is defined in the Act, of a designated

Wild and Scenic River or congressionally authorized Study River. Any

project or construction located within the bed or banks of a designated

Wild and Scenic River or congressionally authorized Study River, or

located below, above, or on any stream tributary thereto is a water

resources project. Examples of water resources projects include, but

are not limited to, fisheries habitat and watershed restoration/

enhancement projects: water diversion projects; transmission lines;

bridge and other roadway construction/reconstruction projects; dams;

water conduits; bank stabilization projects; channelization projects;

powerhouses; levee construction; reservoirs; recreation facilities,

such as boat ramps or fishing piers; or dredge and fill activity that

requires a Federal permit, such as from the U.S. Army Corps of

Engineers as required by Section 404 of the Clean Water Act (33 U.S.C.

1344).

Wild and Scenic River means a river designated as a component of

the National Wild and Scenic Rivers System pursuant to section 3(a) and

2(a)(ii) of the Act.

Sec. 39.3 What procedures must a Federal department or agency follow

to receive consideration from the applicable Wild and Scenic River

administering agency before providing Federal assistance to, or

authorization of, a water resources project?

(a) Notice. (1) As soon as practicable, but not less than 60 days

before the date of the proposed Federal assistance, the Federal agency

must provide a written notice of the agency's intent to construct,

authorize or provide Federal assistance to a water resources project

located on or affecting any portion of a DOI administered Wild and

Scenic River or congressionally authorized Study River, or located

below, above, or on any stream tributary thereto.

(2) Notice must be sent to the designated official of the

applicable Wild and Scenic River administering agency, or his or her

designee, as follows:

(i) BLM administered rivers: State Director, BLM, or his/her

designee; or

(ii) NPS administered rivers: Director, NPS or his/her designee; or

(iii) FWS administered rivers: Director, FWS or his/her designee.

(b) Contents of Notice. The Federal agency must include the

following information in the notice to facilitate the Section 7

determination of effects:

(1) Name and location of the affected designated River or Study

River;

(2) Location of the project or construction;

(3) Nature of the permit, assistance, or other authorization

proposed to be issued;

(4) Description of the proposed activity or construction; and

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

studies, assessments, or environmental impact statements, alternatives,

and mitigating measures.

Sec. 39.4 Under what conditions will the applicable Wild and Scenic

River administering agency consent to Federal assistance to, or

authorization of, a water resources project?

(a) The applicable Wild and Scenic River administering agency will

consent to Federal assistance to, or authorization of, a water

resources project if it determines based on the applicable standard

below:

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

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

or Study River authorized by Congress, when any portion of the project

or construction is within the boundaries of such river;

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

nor unreasonably diminish the scenic, recreational, and fish and

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

of the project or construction is located below, above, or on any

stream tributary thereto.

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

not diminish the scenic, recreational, and fish and wildlife values of

a congressionally authorized Study River when the project or

construction is located below, above, or on any stream tributary

thereto during the study period.

(b) If the project or construction would impermissibly affect wild

and scenic river values, as described above, the designated official of

the applicable Wild and Scenic River administering agency will advise

the assisting or authorizing agencies the water resources project may

not proceed as proposed. The applicable Wild and Scenic River

administering agency may recommend measures to eliminate adverse

effects, and the assisting or authorizing agencies may submit revised

plans for consideration.

Sec. 39.5 What is the estimated time that the applicable Wild and

Scenic River administering agency will take to review a proposal to

provide Federal assistance to, or authorization of, a water resources

project?

The designated official of applicable Wild and Scenic River

administering agency, or designee, will attempt to make a determination

for the proposed water resources project within 60 calendar days of

receiving a Federal agency's notice. However, the designated official

is authorized to make the determination sooner or later than 60 days

depending on the simplicity or complexity of the project or

construction being analyzed. Further, the designated official, to the

extent possible, will expedite consideration of a notice for a project

or construction needed to address any emergency.

Subpart B--[Reserved]

PART 8350--[REMOVED]

2. Remove 43 CFR part 8350.

[FR Doc. 98-32581 Filed 12-8-98; 8:45 am]

BILLING CODE 4310-55-M