Initial River Protection Tools/Mechanisms

Home Browse Search

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. 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 projects. If, and only if, a river has been authorized by Congress for study through § 5(a) of the WSRA, and the governor of a state subsequently applies for designation through § 2(a)(ii), the river is protected from water-resource projects for one year following the application for designation to the Secretary. Under § 2(a)(ii), all gubernatorial nominations are submitted to the Secretary, with notification to the Federal Energy Regulatory Commission, and notice published in the Federal Register. The National Park Service then analyzes the nomination, the physical environment of the river (eligibility) and the ability of the state applying for designation to manage the river, and makes recommendations on designation to the Secretary. 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." -9-