FERC - Wild and Scenic Rivers Act Section 7 Review (17-FD-b)
The WSRA provides for the protection of certain free-flowing rivers and their immediate environments by instituting a national wild and scenic rivers system (NWSRS). Designated rivers, along with those identified by Congress for study, are off limits to many kinds of federally-sponsored or assisted projects, including new Federal Energy Regulatory Commission (FERC) licensed hydropower developments, amendments to existing licenses, and exemptions from licensing under Part 1 of the Federal Power Act (FPA). In creating the NWSRS, Congress declared that the established national policy of dam and other construction at appropriate sections of the rivers of the U.S. needed to be complemented by a policy that would preserve other selected rivers…in their free-flowing condition to protect the water quality of such rivers and to fulfill other vital national conservation purposes.
Section 7(a) of the WSRA prohibits FERC from licensing the construction of any dam, water conduit, reservoir, powerhouse, transmission line, or other project works “on or directly affecting” designated rivers. It also limits the power of any federal department or agency, including FERC, to assist in the construction of any “water resources project” having a direct and adverse effect on the values for which the river was established. In addition, Section 7 limits licensing and water resources projects upstream, downstream, or on a tributary to a designated river. Such projects must not invade the area or unreasonably diminish the scenic, recreational, and fish and wildlife values present in the area at the time of designation. See Section 7(a).
Section 7(b) of the WSRA imposes similar limitations on Congressionally-authorized study rivers. The same FERC prohibition applies for hydropower project construction, as does the restriction on other federal agency assistance for water resources projects. On rivers designated for study in Section 5(a) of the WSRA, a similar process is used to evaluate proposed projects upstream, downstream or on a tributary to the study river, except that the word “unreasonably” is omitted from the statute. Congress has set a higher standard of protection for study rivers during the finite study period. See Section 7(b).Ultimate determinations as to whether a project can proceed under Section 7 due to effects on a Wild and Scenic River are made by the river administering agency under authority delegated by the Secretary of Interior or Agriculture, depending on which agency administers the WSR. A river administering agency is one of the four federal agencies that may be charged with administration of a component of the National System. These agencies are the Bureau of Land Management, National Park Service, US Fish and Wildlife Service, and United States Forest Service. The Section 7 determination process is an evaluative procedure required before federal funding, licensing, permitting, or other form of assistance for the proposed project is allowed.
FERC - Wild and Scenic Rivers Act Section 7 Review Process
17-FD-b.1 to 17-FD-b.3 – Will the Proposed Project Be Located Within an Area Subject to the Wild and Scenic Rivers Act?
If the proposed project could affect a designated or Congressional study river, the Federal Energy Regulatory Commission (FERC) must provide notice of the project to the River Administering Agency, (i.e., Bureau of Land Management, National Park Service, U.S. Fish and Wildlife Service, U.S. Forest Service). The National Park Service is responsible for most determinations on rivers administered by states and included in the National Wild and Scenic Rivers System under Section 2(a)(ii). The river administering agency’s review standards for the proposed project will differ depending upon the location in relation to the WSR and other specific details.
FERC routes applications for preliminary permits and licenses for construction of hydroelectric facilities to river-administering agencies for determinations of whether the project is “on or directly affecting” a designated river. The river-administering agencies apply the statute to prohibit any project work licensed under the FPA within the river corridor.
In addition, because the Department of Agriculture has promulgated Section 7 regulations at 36 C.F.R. § 297, additional procedures are required for proposed projects on rivers administered by the USFS. FERC issues notice to the USFS as soon as practicable, but 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.
17-FD-b.4 - Is the Project Located On or Will the Project Directly Affect a Wild and Scenic River Corridor or Section 5(a) Study Area?
The WSRA prohibits FERC projects located on or directly affecting a Wild and Scenic River or Section 5(a) Study Area. FERC’s regulations require license and exemption applicants to provide a copy of their application to each resource agency consulted during pre-filing. The regulations also require FERC to issue notice to the appropriate agencies of the filing of such applications, in part so that the river administering agencies can determine whether the project is “on or directly affecting” a designated WSR or congressionally authorized study river. If the river administering agency determines that any project would be “on or directly affecting” a designated WSR or congressionally authorized study river, the license or exemption application should be dismissed without further processing.
17-FD-b.5 – Will the Project Involve Construction of FPA Part 1 “Project Works” Such as a Dam, Water Conduit, Reservoir, Powerhouse, or Transmission Line?
Section 7(a) of the WSRA prohibits FERC from licensing or exempting construction of specific hydropower project components and other project works located on or directly affecting a WSR corridor or Section 5(a) study area. Prohibitions include: dams, water conduits, reservoirs, powerhouses, transmission lines, and other project works covered under Part I of the hydropower provision of the FPA. The Federal Power Act (FPA) defines “project works” as “the physical structures of a project.” 16 U.S.C. § 796. FERC will not authorize physical structures within a WSR corridor, including measures not used for power generation such as habitat restoration (e.g., gravel augmentation, placement of large wood) and recreation enhancements (e.g., access, campground improvements); however, FERC staff has acknowledged that other agencies may have broader authority to authorize such measures, provided the WSR administering agency determines that such activities will meet the appropriate evaluative standard. Such situations may require additional analysis and coordination between the licensee, FERC, other stakeholders, and the WSR administering agency.
17-FD-b.6 – Does the Project Involve Relicensing, Amending a License or Issuing an Exemption for an Existing Hydropower Project or the Construction of Non-Project Works?
In the rare instances where an existing hydroelectric facility is included in a designated river corridor, the River administering agencies interpret the WSRA to allow FERC to relicense or amend a license, or issuing an exemption, provided the new FERC authorization does not have a direct and adverse effect on free-flow, water quality, and other river values. For example, if no changes in operations of the existing facility are proposed, existing impacts on river values would likely be considered as having been grandfathered.
The WSRA does not necessarily prohibit other agencies from authorizing the construction of non- project works (i.e., water resources projects) that are located on or that directly affect a Wild and Scenic River or Section 5(a) study area such as hydropower impact mitigation measures proposed for areas within the designated WSR or study corridor in situations where the hydropower project itself is located outside of those areas (i.e., upstream, downstream, or on a tributary).
Such projects require additional analysis and coordination with the river administering agency, and are subject to review by the river administering agency under Section 7(a) if the construction of such facilities involves federal assistance (i.e., loan, grant, license, or otherwise) and would affect free-flow. Such projects generally occur within the ordinary high water mark (OHWM) of the river and trigger Section 404 of the Clean Water Act. The river administering agency evaluates such projects under a “direct and adverse” effects standard, by determining effects on free-flowing condition, water quality and each outstanding remarkable value.
17-FD-b.7 – Evaluate Project Under the “Direct and Adverse Effects” Standard
A “direct and adverse effect” analysis includes the following steps:
- Define the proposed activity;
- Describe how the proposed activity will directly alter within-channel conditions;
- Describe how the proposed activity will directly alter riparian and/or floodplain conditions;
- Describe how the proposed activity will directly alter upland conditions;
- Evaluate and describe how changes in on-site conditions can/will alter existing hydrologic or biologic processes;
- Estimate the magnitude and spatial extent of potential off-site changes;
- Define the time scale over which steps 3-6 are likely to occur;
- Compare project analyses to management goals; and
- Make the Section 7 determination.
The River Administering Agency evaluates any changes to the project’s configuration and operation and the condition of the river’s outstanding remarkable values (ORV) against the baseline configuration, operation, and ORV conditions existing on the date of the river’s designation. Technical Report of the Interagency Wild and Scenic Rivers Coordinating Council.
If, however, in the judgement of the River Administering Agency the proposed project operations would have a direct and adverse effect, the river-administering agency may, but is not required to, make recommendations that would allow the FERC to license the project. (Application of Section 7 does not, however, restrict an agency’s authority to provide terms and conditions or other article requirements under the FPA.) Refer to Appendix C for the evaluation procedure.
For a more detailed description of the “direct and adverse” evaluation procedure, see Technical Report of the Interagency Wild and Scenic Rivers Coordinating Council, Appendix C.
17-FD-b.8 to 17-FD-b.9 – Is the Project Located on a River Below, Above or On a Tributary to a Wild and Scenic River Corridor or Section 5(a) Study Area?
Section 7(a) of the Wild and Scenic Rivers Act prohibits FERC from licensing or exempting a hydropower project proposed below, above, or on a stream tributary to a designated river area if the project has potential to invade the area or unreasonably diminish the scenic, recreational, and fish and wildlife values present within the area on the date the river was designated.
Section 7(b) applies similar restrictions to Congressionally authorized study rivers, but without the qualifying word “unreasonably,” in effect making the review standard stronger during the finite study period.
If the project is not located on, above, or below a WSR corridor, on a tributary to a WSR corridor, or in a Section 5(a) study area, and the project will not directly affect a WSR corridor or Section 5(a) study area, no Section 7 review is required and the developer may continue with the proposed project FERC process. Note, however, that federal land managing agencies may nonetheless impose conditions on project facilities located on federal lands outside the FERC-licensed project area if this is necessary to achieve the purposes of Sections 12 and 13(g) of the WSRA. For rivers determined eligible or suitable for potential inclusion in the National Wild and Scenic Rivers System through agency planning processes, (Section 5(d)(1)), the FERC staff relies on the Nationwide Rivers Inventory (NRI) and agency response to preliminary permits, and license or exemption applications. Listing on the NRI or identification as an eligible/suitable river through agency study processes does not prohibit the FERC from licensing a project. Only congressionally authorized study rivers (Section 5(a)) are subject to Section 7(b) of the WSRA. It is important to identify potential conflicts early for consideration in the FERC’s NEPA process.
17-FD-b.10 – Evaluate Effects Under “Invade the Area or (Unreasonably) Diminish” Standard
If the project is located on a river below, above, or on a tributary to a WSR corridor or Section 5(a) study area, the river administering agency evaluates the potential effects to a designated river under an “invade the area or unreasonably diminish” standard. The river administering agency evaluates the potential effects to a congressionally authorized study river under an “invade the area or diminish” standard.
The analysis is as follows:
- Does the proposed project invade the river? The term “invade” is defined as “encroachment or intrusion upon.” “Invade” has been applied to backwatering from downstream impoundments. If the project would invade the river, measures must be taken to avoid this unacceptable result or the project cannot be licensed.
- If the project does not invade the river, does the proposed project cause diminution of the scenic, recreational, and fish and wildlife values of the river?
If the proposed project will diminish any of the specified values of a designated river, the river administering agency must evaluate the reasonableness of the diminution. The river administering agency evaluates the magnitude of the loss, considering the following factors:
- Whether the value contributed to the designation of the river; and
- The current condition and trends of the resource.
Congressionally Authorized Study Rivers
The River Administering Agency will determine that any diminution of values, no matter how small, is unacceptable for Congressionally authorized study rivers.
For a more detailed description of the “invade the area or unreasonably diminish” or “invade the area or diminish” evaluation procedures, see Technical Report of the Interagency Wild and Scenic Rivers Coordinating Council, Appendices D and E.
17-FD-b.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.
In certain situations, the change of operations (per modification or relicense) may be of positive benefit to river-related values. Absent changed conditions or trends of affected resources, a project proposed to operate in the same or similar manner as of the date of designation is unlikely to result in adverse effects.
17-FD-b.12 to 17-FD-b.13 – Transmit Finding to FERC
After evaluating the project, the river administering agency makes a conclusion as to whether the project, as proposed, will meet WSRA standards and/or provides a detailed discussion of the potential effects of the project, as appropriate.
If a proposed project 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 scenic, recreational, and fish and wildlife values present in the area on the date of designation of the river as a component of the National Wild and Scenic River System, FERC cannot authorize the project (as proposed). Technical Report of the Wild and Scenic Rivers Coordinating Council.
Once the determination is complete, the river administering agency notifies FERC of its conclusion. See Technical Report of the Interagency Wild and Scenic Rivers Coordinating Council. In the event that the river administering agency does not allow a project to proceed, FERC has established a policy of dismissing license or preliminary permit applications where the proposed development is barred by the WSRA.
17-FD-b.14 to 17-FD-b.16 – Does the Secretary Suggest any Measures to Meet WSR Standards?
The Secretary of the River Administering Agency may (but is not required to) recommend measures that would enable a proposed project to meet the standards of the Wild and Scenic Act and allow FERC to proceed with issuing a license or exemption for the hydropower project. If the administering agency chooses to recommend measures necessary for the project to proceed, FERC will submit a revised plan for the proposed project for a revised determination by the river-administering agency. Ideally, consultation to develop a project that meets the requirements of the Wild and Scenic Rivers Act occurs before a final license application is submitted to FERC. . Title 36 C.F.R. § 297.5(3)(b).
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