[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] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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 [[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