River Protection Workgroup Initial River Protection Tools/Mechanisms

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Section ( &) 2 (a) (ii) Designation of a WSR The process set forth in §§ 2(a)(ii) and 4(c) of the WSRA, subject to certain conditions, authorizes the Secretary to include a river, already protected by a state's river protection program, enacted by the state's legislature or a vote of the people, in the WSR system upon the request of the state's governor. The same eligibility and classification provisions that apply to congressionally designated rivers also apply to § 2(a)(ii) rivers. The river must also be administered by an agency or political subdivision of the state, except for lands already administered by the federal government, and there must be effective mechanisms and regulations in place -- local, state or federal - to provide for the long -term protection of the rivers' ORVs, based on an assessment by a National Park Service study team of state and local laws and regulations and how effectively they are being applied. While rivers designated as WSR under § 2(a)(ii) are generally protected as are rivers designated by Congress, there are differences, especially with regard to their management.' First, the river is managed by state or local agencies, except for federal lands.2 While several recent congressional WSR designations mandate that a river be managed cooperatively with local governments, Section 2(a)(ii) specifically precludes federal management of the river. Other than for the management of federally owned lands, the federal land managing agency will still continue to manage its lands, preferably in cooperation with the state and/or local river manager. Second, a river added to the National WSR System through § 2(a)(ii), must be administered without cost to the federal government. Therefore there can be no condemnation or other acquisition of lands or water rights by the federal government. Third, the Secretary may establish criteria to be met by § 2(a)(ii) river management supplementary to criteria in the WSRA. The advantages of WSR designation through Section 2(a)(ii) include: (1) potentially faster administrative designation than congressional action, (2) a demonstration by state and/or local jurisdictions of a commitment to river protection, (3) where there is local concern over federal regulation, the river can still be designated, and (4) Section 2(a)(ii) rivers can receive most of the protections of the WSRA without federal involvement, with the exception of federal review of federally sponsored or permitted water resource proj ects. 1 One difference specifically outlined by the WSRA regarding § 2(a)(ii) rivers, concerns rivers that are under a congressionally mandated study for WSR designation under § 7(b) of the WSRA, no U.S. department may 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 ORVs for which such river might be designated, during such additional period thereafter as ... is necessary for congressional consideration thereof or, in the case of any river recommended to the Secretary § 2(a)(ii), is necessary for the Secretary's consideration thereof, which additional period, shall not exceed three years in the first case and one year in the second. 2 An early Interior opinion stated that the presence of substantial federal lands along a proposed § 2(a)(ii) river would be "contrary to the ... administration of the rivers ... at no expense to the Federal Government." Congress amended the WSRA to remove this obstacle in 1978 to provide that § 2(a)(ii) rivers designated are to be administered by the state without expense to the federal government "other than for administration and management of federally owned lands." 10