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Wild and Scenic Rivers Act Section 7 Review (17-FD-a)

Information current as of 2019
The Wild and Scenic Rivers Act prohibits the Federal Energy Regulatory Commission (FERC) from licensing any project or other project works under the Federal Power Act on or directly affecting any river which is designated as a component of the national wild and scenic river system. 16 U.S.C. § 1278 (a). The Wild and Scenic Rivers Act also prohibits any Department or Agency of the United States from providing federal assistance for the construction of any water resource project that would have a direct and adverse effect on the values for which the river was designated. 16 U.S.C. § 1278 (a). "Federal Assistance" means any assistance by an authorizing agency, including by not limited to the following:


  • A license, permit, preliminary permit, or other authorization granted by the FERC pursuant to sections 4(e) and 4(f) of the Federal Power Act;
  • A license, permit or other authorization granted by the U.S. Army Corps of Engineers pursuant to the Rivers and Harbors Act and section 404 of the Clean Water Act; and
  • Any other license permit, or authorization which may be required by any agency or Department of the Federal Government, before, during, or after construction of a water resources project. 36 C.F.R. § 297.3.


"Water Resources Project" means any dam, water conduit, reservoir, powerhouse, transmission line, or other project works under the Federal Power Act, or other construction of developments which would affect the free- flowing characteristics of a Wild and Scenic River or Study River. 36 C.F.R. § 297.3. "Free-flowing" means existing or flowing in natural condition without impoundment, diversion, straightening, rip-rapping, or other modifications of the waterway." 16 U.S.C. § 1286 (b).



Wild and Scenic Rivers Act Section 7 Review Process

17-FD-a.1 to 17-FD-a.2 – Will the Project be Licensed or Exempted by FERC?

The Federal Energy Regulatory Commission (FERC) is prohibited from issuing a license or exemption for construction of any water resources project located “on or directly affecting” a designated river or congressionally authorized study river. 16 U.S.C. § 1278 (a)-(b). Water resources projects are defined as “any dam, water conduit, reservoir, powerhouse, transmission line or other project works under the Federal Power Act…or other construction…that would affect the free-flowing characteristics of a Wild and Scenic River.” 36 C.F.R § 297.3

The Section 7 process for FERC licensed, amended, or exempted projects is different from those projects authorized by other federal agencies. If the proposed project is licensed, amended, or exempted by FERC, see: FERC - Wild and Scenic Rivers Act Review:
17-FD-b

FERC is authorized, under Section 216(b) of the Federal Power Act, to issue permits for the construction and modification of electronic transmission facilities in national interest electric transmission corridors (NIETCs). See 16 U.S.C. § 824p.

17-FD-a.3- Is the Project Proposed or Assisted by a Federal Agency?

Sections 7(a) and 7(b) specifically address federal assistance in the construction of water resources projects affecting designated Wild and Scenic Rivers and congressionally authorized study rivers. No federally proposed or assisted water resources project may receive a permit or be licensed on any part of a Wild and Scenic River or study river without a determination by the river administering agency that the project will not have a “direct and adverse” effect on the values for which a river was designated or might be designated for inclusion as a Wild and Scenic River.

Hydropower

Within the context of hydropower development an example of a project assisted by a federal agency, but not requiring a FERC License, would be issuance by the Bureau of Reclamation of a Lease of Power Privilege for hydroelectric power generation on a BOR managed dam or conduit, see:

BOR Lease of Power Privilege:
3-FD-p

If the project is not proposed or assisted by a federal agency, no Section 7 determination is required.

17-FD-a.4 – Issue Notice of Intent

No license, permit or other authorization may be issued for any federally assisted water resources project without prior notice to the Secretary of the river administering agency. Such notice will be issued no less than 60 days prior to the proposed action. The notice must include:

  • The name and location of the affected river;
  • The location of the project;
  • The nature of the permit or other authorization;
  • A description of the proposed activity; and
  • Any relevant information such as maps, plans, environmental studies, environmental assessments or environmental impact statements.

36 C.F.R § 297.3

17-FD-a.5 to 17-FD-a.6 - Is the Project in the “Bed or Banks” of a Designated River or a River Designated for Study?

The application of Section 7(a) is limited to the area within the ordinary high water mark of the river. The ordinary high water mark is defined as “that line on the shore established by fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank…” Federally assisted water resources projects on the “bed or banks” of a designated river are prohibited if they would have a “direct and adverse effect” on the values for which a river was designated a Wild and Scenic River. Under the same standard, Section 7(b) protects congressionally authorized study rivers which might be designated as a Wild and Scenic Rivers. A “direct and adverse effect” analysis will include the following steps:

  1. Define the proposed activity;
  2. Describe how the proposed activity will directly alter within-channel conditions;
  3. Describe how the proposed activity will directly alter riparian and/or floodplain conditions;
  4. Describe how the proposed activity will directly alter upland conditions;
  5. Evaluate and describe how changes in on-site conditions can/will alter existing hydrologic or biologic processes;
  6. Estimate the magnitude and spatial extent of potential off-site changes;
  7. Define the time scale over which steps 3-6 are likely to occur;
  8. Compare project analyses to management goals; and
  9. Make the Section 7 determination.

For a more detailed description of the “direct and adverse” evaluation procedure, see Technical Report of the Interagency Wild and Scenic Rivers Coordinating Council

17-FD-a.7 to 17-FD-a.8 – Is the Project in the “Bed or Banks” of a River Below, Above, or on a Tributary to a Designated River or a River Designated for Study?

Section 7(a) applies to hydropower projects proposed in the “bed or banks” of a river located below, or above a designated river area, or on a stream tributary to a designated river area if the project has potential effects within the Wild and Scenic River corridor. Under the same criteria, Section 7(b) applies where the river is designated for study under Section 5(a) of the WSRA. The river administering agency will evaluate proposals under an “invade the area or unreasonably diminish” standard. That standard applies to projects below, above or on a stream that is a tributary to a designated river or a river designated for study. The analysis of this standard is as follows:

  • Does the proposed project invade the river? The term “invade” is defined as “encroachment or intrusion upon.” If the project would invade the river, measures should be taken to avoid this result.
  • Does the proposed project cause diminution of the values of the designated river, as present at the date of designation?
  • Is the diminution “unreasonable? See 36 C.F.R § 297.5(2)

For a more detailed description of the “invade the area or unreasonably diminish” evaluation procedure, see Technical Report of the Interagency Wild and Scenic Rivers Coordinating Council

17-FD-a.9 – Nationwide Rivers Inventory (NRI)

Under Section 5(d) of the WSRA, the National Park Service has created a Nationwide Rivers Inventory (NRI) for tracking river segments that potentially qualify as national wild, scenic, or recreational river areas. The NRI is considered a planning report which must be considered by all federal agencies when approving development. Developers should consult the NRI to determine if the proposed project has the potential to impact a river segment with potential to be designated for study under the WSRA.

17-FD-a.10 – Section 7(a) Determination Not Required; Continue with Project

If the project is not proposed in the bed or banks of a river below, above, or on a tributary to a designated river or a river designated for study, then no Section 7(a) determination is required.

17-FD-a.11 – Section 7 Determination

The river administering agency is responsible for conducting the Section 7 analysis and making a determination in accordance with the WSRA. Although a separate environmental document is not required for the Section 7 determination, the river administering agency may utilize information contained within the NEPA document produced by FERC, which typically includes an analysis of the project’s potential effects on wild and scenic rivers, to inform the agency’s decision. If a proposed project in the “bed and banks of a designated Wild and Scenic River area is determined to have a “direct and adverse” effect, or if a proposed project situated below, above or on a tributary to a designated river area will “invade the area or unreasonably diminish” the values of the Wild and Scenic River, the project, as proposed, cannot continue.

17-FD-a.12 to 17-FD-a.13 – Transmit Finding to Federal Authorizing Agency

Once the project analysis is complete, the river administering agency notifies the federal authorizing agency of its determination. See Technical Report of the Interagency Wild and Scenic Rivers Coordinating Council.

17-FD-a.14 to 17-FD-a.15 – Does the Secretary Recommend Any Mitigation Measures to Eliminate Adverse Effects?

The Secretary of the river administering agency may recommend measures to eliminate the adverse effects of the proposed project. The authorizing agency may then submit revised plans. See 36 C.F.R. § 297.5(3)(b).

17-FD-a.16 to 17-FD-a.19 – Does Authorizing Agency Seek Congressional Authorization?

In the event that the river administering agency does not allow a project to proceed, an exception exists in the WSRA for projects requiring Congressional authorization or appropriation. The authorizing agency will notify the river administering agency, no less than 60 days in advance of the proposed project, and Congress of its preference to proceed with the project. Congress will determine whether the project can continue despite its adverse effects. A project that does not receive consent from Congress in this situation cannot continue. See the Technical Report of the Interagency Wild and Scenic Rivers Coordinating Council; 16 U.S.C. § 1278(a).

17-FD-a.20 - Grant License, Permit or Other Authorization

The license, permit or other authorization will be granted if the river administering agency finds that the proposed project will not have an adverse effect on the designated river or any potential adverse effects are to be eliminated through mitigation measures. If the river administering agency does not authorize the project, Congress may determine the project can continue despite adverse effects.


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