[Federal Register Volume 63, Number 236 (Wednesday, December 9, 1998)]
[Proposed Rules]
[Pages 67834-67837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32581]
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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__ Haubert@nps.gov [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: john__haubert@nps.gov
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
[[Page 67836]]
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
