section 7 determinations – how to complete a section 7 - randy welsh, steve chesterton - usda...

WSRA Training Course

Section 7 of the

Wild and Scenic Rivers Act of 1968 (as amended)

Interagency Wild and Scenic Rivers

Coordinating Council and

River Management Society

Today’s Instructors

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Randy Welsh Wild and Scenic Rivers Program Lead – WO FS rwelsh@fs.fed.us 202-205-9333

Steve Chesterton Wild and Scenic Rivers/ Wilderness – WO FS smchesterton@fs.fed.us 202-205-1398

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Course Goals

• Overview of the WSRA • Intent of WSRA & Section 7 • Create a framework for

Section 7 statutory text • Understand the components

of a Section 7 Determination • Provide tools for river

managers to apply Section 7 4

Pre-Test

• Test your current knowledge of Section 7

• Basis for learning • Will do follow-up test at

end of course

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The Wild and Scenic

Rivers Act (WSRA)

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Intent of WSRA

To complement the national policy of dam and other construction

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12,597 river miles protected under WSRA

< 1% of rivers designated

860,000 river miles dammed, dredged or channelized

24% of rivers affected

0

500,000

1,000,000

1,500,000

2,000,000

2,500,000

3,000,000

3,500,000

Designated Wildand Scenic Rivers

Nationwide RiversInventory

Dammed,Channelized &

Dredged

Total

Miles 12,597 84,634 860,000 3,500,000

America's Rivers

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Intent of WSRA

To protect and enhance…

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Free-Flowing Condition

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Water Quality

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Outstandingly Remarkable Values (ORVs)

Intent of WSRA

Protect and Enhance:

• Free-Flowing Condition

• Water Quality • ORVs

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Overview of WSRA Study Process

Establish a process to add rivers to the national system

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• Eligibility • Classification • Suitability

Two types of Study

1) Section 5(a) – Congressionally Authorized

Study Rivers

2) Section 5 (d)(1) – Agency Authorized Studies

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Classification System

• Three possible classifications

• Different levels of development and access

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River Classification

• Wild

• Scenic

• Recreational

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Intent of Section 7 Wild and Scenic Rivers Act

Keep rivers free-flowing Protection from the

harmful effects of water resource projects

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Imagine…

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Hell’s Canyon Dam 21

Below Hell’s Canyon Dam 22

Intent of Section 7

Keeps rivers free-flowing

– Focused on modification of the waterway

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Intent of Section 7

Protect from harmful effects of “water resources projects” (WRPs) • Hydropower project • Other construction

Independent of classification

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Section 7 – Two Parts

7(a) – designated rivers 7(b) – congressionally

authorized study rivers

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Section 7(a)

“The Federal Power Commission [FERC] shall not license the construction of any dam, water conduit, reservoir, powerhouse, transmission line, or other project works under the Federal Power Act, as amended, on or directly affecting any [designated WSR]…”

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Section 7(a)

“…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”

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Section 7(a) “Nothing contained in the foregoing sentence 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 [WSR].” 28

Section 7(b) Only applies to congressionally authorized study river corridors

• Same as Section 7(a) for WRP within a designated corridor

• Nearly identical to section 7(a)

for WRP outside a designated river corridor

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Section 7 Framework

Kind of Activity

Standards to Apply Federal Agency Role 30

Key Question #1

Is the proposed project a

“water resources project”?

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Is the proposed project a

“water resources project”?

Hydropower project licensed by FERC?

Potential to affect free-flowing characteristics? ( 36 CFR 297.3)

In the waterway Bed and banks

Below OHM (33 CFR 328.3 (e))

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Audience Exercise

Is it a Water Resources

Project?

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Is this a Water Resources Project?

Hydropower dam • Within a designated river

corridor

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Is this a Water Resources Project?

Hydropower dam • Within a designated river

corridor

Yes

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Is this a Water Resources Project?

Boat Ramp • Within bed and banks of a

designated river corridor

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Is this a Water Resources Project?

Boat Ramp • Within bed and banks of a

designated river corridor

Yes

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Is this a Water Resources Project?

Fisheries Habitat Improvement • Within a congressionally

authorized study river • In-stream rock weir • Within bed and banks

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Is this a Water Resources Project?

Fisheries Habitat Improvement • Within a congressionally

authorized study river • In-stream rock weir • Within bed and banks

Yes

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Is this a Water Resources Project?

Fuels Reduction • Within a designated river

corridor • Above the bed and banks

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Is this a Water Resources Project?

Fuels Reduction • Within a designated river

corridor • Above the bed and banks

No

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Is this a Water Resources Project?

Bridge Replacement • Crossing a designated river • Bridge abutments to be

replaced are within bed and banks

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Is this a Water Resources Project?

Bridge Replacement • Crossing a designated river • Bridge abutments to be

replaced are within bed and banks

Yes 43

Summary Is it a WRP?

Hydropower project licensed by FERC

Potential to affect free-flowing characteristics In the waterway Bed and banks Below OHWM

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Section 7 Framework

Kind of Activity Water Resources Project

Standards to Apply

Federal Agency Role 45

Key Question #2

Which standard applies?

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Which standard applies? Three Section 7(a) standards

that apply in specific situations: 1. On or directly affecting

2. Direct and adverse effects

3. Invade the area or

unreasonably diminish 47

On or Directly Affecting

• Hydropower project • Licensed by FERC • Within the river corridor

– Designated or Study

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Prohibited by Section 7 No new dams or FERC licensed hydropower projects in a WSR corridor

Direct and Adverse Effect

• Water resources project • “Assisted” by any federal

agency • Within a designated or

study river • Evaluate effect on values

– Free-flowing condition, water quality, ORVs

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Direct and Adverse Effect

• No outright prohibition on Water Resource Projects

• Does not allow for

“balancing” or weighting one value over another

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Invade or Unreasonably Diminish

Section 7a

• Activity within river bed and banks

• Above, below, or on a tributary to a designated river corridor

• Applies to scenic, recreational, fish and wildlife values

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Invade or Diminish Section 7b

• Applies only to congressionally authorized study rivers

• WRP above, below, or on a tributary to…

• Applies to scenic, recreational, and fish and wildlife values

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Section 7 Situations

The standard that applies is based on:

Location

• Inside or outside of a WSR corridor

• Designated or congressionally-authorized study river

Which federal agency assists

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Standards for Evaluation of a Water Resources Project

Proposed hydropower facilities (FERC-licensed)

Outside the WSR Corridor (upstream, downstream or

tributary) On or directly affecting

Proposed hydropower facilities (FERC-licensed)

Invade the area or unreasonably diminish

Invade the area or unreasonably diminish

Direct and adverse effects

Within the WSR Corridor

Other proposed federally assisted WRPs

Other proposed federally assisted WRPs

Study Rivers outside the Corridor

To Scenic, Recreational, Fish and Wildlife Values

To Free Flow, Water Quality, and ORV’s

WRP3 assisted by

federal agency

WRP2 licensed by Federal Energy Regulatory

Commission (FERC)

Evaluative Standard

Evaluative Standard

Standard

application

Evaluation

Requirements of Standard

WRP licensed or assisted

by federal agency

Evaluative Standard

Act Requirements

Act Requirements

Act Requirements

Evaluation

Requirements of Standard

Water Resources Project (WRP) within a WSR (“Within” Flowchart)

Water Resources Project (WRP) outside a WSR (“Outside” Flowchart)

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Water Resources Project (WRP) within a WSR (“Within” Flowchart)

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WRP licensed by Federal Energy Regulatory Commission

(FERC) “Construction of any dam, water conduit, reservoir, powerhouse,

transmission line, or other project works under the Federal Power

Act (FPA)”

Water Resources Project (WRP) within a WSR (“Within” Flowchart)

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WRP licensed by Federal Energy Regulatory Commission

(FERC) “Construction of any dam, water conduit, reservoir, powerhouse,

transmission line, or other project works under the Federal Power

Act (FPA)”

Requires: •License or exemption by FERC •Project works within bed, banks or corridor

Water Resources Project (WRP) within a WSR (“Within” Flowchart)

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WRP licensed by Federal Energy Regulatory Commission

(FERC) “Construction of any dam, water conduit, reservoir, powerhouse,

transmission line, or other project works under the Federal Power

Act (FPA)”

Evaluative Standard: “On or directly

affecting”

Requires: •License or exemption by FERC •Project works within bed, banks or corridor

Water Resources Project (WRP) within a WSR (“Within” Flowchart)

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WRP licensed by Federal Energy Regulatory Commission

(FERC) “Construction of any dam, water conduit, reservoir, powerhouse,

transmission line, or other project works under the Federal Power

Act (FPA)”

Evaluative Standard: “On or directly

affecting”

Standard prohibits any hydropower project works licensed under FPA within WSR corridor.

Requires: •License or exemption by FERC •Project works within bed, banks or corridor

Water Resources Project (WRP) within a WSR (“Within” Flowchart)

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Water Resources Project (WRP) within a WSR (“Within” Flowchart)

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WRP assisted by federal agency Any construction that affects a WSR’s

free-flowing condition

Water Resources Project (WRP) within a WSR (“Within” Flowchart)

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WRP assisted by federal agency Any construction that affects a WSR’s

free-flowing condition

Requires: •Assistance by a federal agency •Within bed or banks

Water Resources Project (WRP) within a WSR (“Within” Flowchart)

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WRP assisted by federal agency Any construction that affects a WSR’s

free-flowing condition

Evaluative Standard: “Direct and adverse

effects”

Requires: •Assistance by a federal agency •Within bed or banks

Water Resources Project (WRP) within a WSR (“Within” Flowchart)

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WRP assisted by federal agency Any construction that affects a WSR’s

free-flowing condition

Evaluative Standard: “Direct and adverse

effects”

Standard requires evaluation of project effects on free-flowing condition, water quality and each outstandingly remarkable value. Use procedure outlined in Appendix C of Council’s Section 7 technical report.

Requires: •Assistance by a federal agency •Within bed or banks

Water Resources Project (WRP) within a WSR (“Within” Flowchart)

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Water Resources Project (WRP) outside a WSR (“Outside” Flowchart)

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WRP assisted by federal agency Any construction within river’s bed or its banks

upstream, downstream or on any tributary to WSR

Water Resources Project (WRP) outside a WSR (“Outside” Flowchart)

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WRP assisted by federal agency Any construction within river’s bed or its banks

upstream, downstream or on any tributary to WSR

Requires: •Assistance by federal agency •Within bed or banks upstream, downstream or on a tributary •Potential to affect free-flow or scenery, recreation, fish or wildlife values present within WSR7

Water Resources Project (WRP) outside a WSR (“Outside” Flowchart)

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WRP assisted by federal agency Any construction within river’s bed or its banks

upstream, downstream or on any tributary to WSR

Evaluative Standard: “Invade the area or unreasonably

diminish”

Requires: •Assistance by federal agency •Within bed or banks upstream, downstream or on a tributary •Potential to affect free-flow or scenery, recreation, fish or wildlife values present within WSR7

Water Resources Project (WRP) outside a WSR (“Outside” Flowchart)

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WRP assisted by federal agency Any construction within river’s bed or its banks

upstream, downstream or on any tributary to WSR

Evaluative Standard: “Invade the area or unreasonably

diminish”

Requires: •Assistance by federal agency •Within bed or banks upstream, downstream or on a tributary •Potential to affect free-flow or scenery, recreation, fish or wildlife values present within WSR7

Standard requires evaluation of project effects on free-flowing condition or scenery, recreation, fish or wildlife values present in the WSR at the date of its designation. Use the procedure outlined in Appendix D of the Council’s Section 7 technical report.

Water Resources Project (WRP) outside a WSR (“Outside” Flowchart)

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WRP3 assisted by

federal agency

WRP2 licensed by Federal Energy Regulatory

Commission (FERC)

“On or Directly Affecting”

“Direct and Adverse Effects”

Standard

application

Evaluation

Requirements of Standard

WRP licensed or assisted

by federal agency

“Invade or unreasonably

diminish”

Act Requirements

Act Requirements

Act Requirements

Evaluation

Requirements of Standard

Water Resources Project (WRP) within a WSR (“Within” Flowchart)

Water Resources Project (WRP) outside a WSR (“Outside” Flowchart)

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Section 7 Framework

Kind of Activity • Water Resources Project

Standards to Apply • Inside, outside corridor • Designated or study river • Which federal agency assists

Federal Agency Role

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Key Question #3

What is the federal agency role?

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What is the federal agency role?

Assisting Agency River-Administering

Agency

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What is the federal

agency role? Assisting Agency:

“… Federal Power Commission (FERC) shall not…” “…no department or agency shall…”

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What is the federal

agency role?

River-administering agency: Evaluate a WRP Make a determination

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Adverse effects Adverse effects - avoidance measures

No adverse effects

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Outcomes

Section 7 Framework

Kind of Activity • Water Resources Project

Standards to Apply • Inside, outside corridor,

designated or study river • Agency licensing or assisting

Federal Agency Role • Licensing or Assisting • River-Administering Agency

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Test your Knowledge

• Opportunity to apply – Definitions – Standards

• Audience Exercise – Three proposed projects

• Is it a WRP? • What standard applies? • Choose best answer when polled

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Standards for Evaluation of a Water Resources Project

Proposed hydropower facilities (FERC-licensed)

Outside the WSR Corridor (upstream, downstream or

tributary) Proposed hydropower facilities (FERC-licensed)

Within the WSR Corridor

Other proposed federally assisted WRPs

Other proposed federally assisted WRPs

To Scenic, Recreational, Fish and Wildlife Values

To Free Flow, Water Quality, and ORV’s

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Standards for Evaluation of a Water Resources Project

Proposed hydropower facilities (FERC-licensed)

Outside the WSR Corridor (upstream, downstream or

tributary) On or directly affecting

Proposed hydropower facilities (FERC-licensed)

Invade the area or unreasonably diminish

Invade the area or unreasonably diminish

Direct and adverse effects

Within the WSR Corridor

Other proposed federally assisted WRPs

Other proposed federally assisted WRPs

To Scenic, Recreational, Fish and Wildlife Values

To Free Flow, Water Quality, and ORV’s

Santa Frietta Wild and Scenic River

C

B

A

Nearby Faraway Wilderness

US Hwy 21

N

Legend

Private Land

State Land

Wilderness

Highway County Road Trail River Tributary

Project Location

Recreational Segment

Wild Segment

Santa Frietta River

Segment Boundary Downstream

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Scenario A

A

Nearby Faraway Wilderness

US Hwy 21

N

Legend

Private Land

State Land

Wilderness

Highway County Road Trail River Tributary

Project Location

Recreational Segment

Wild Segment

Santa Frietta River

Segment Boundary Downstream

A 83

Scenario A

A

Nearby Faraway Wilderness

US Hwy 21

N

Legend

Private Land

State Land

Wilderness

Highway County Road Trail River Tributary

Project Location

Recreational Segment

Wild Segment

Santa Frietta River

Segment Boundary Downstream

A 84

Yes – Water Resources Project

Direct and Adverse Effect

Scenario B

B

Nearby Faraway Wilderness

US Hwy 21

N

Legend

Private Land

State Land

Wilderness

Highway County Road Trail River Tributary

Project Location

Recreational Segment

Wild Segment

Santa Frietta River

Segment Boundary Downstream

B

85

Scenario B

B

Nearby Faraway Wilderness

US Hwy 21

N

Legend

Private Land

State Land

Wilderness

Highway County Road Trail River Tributary

Project Location

Recreational Segment

Wild Segment

Santa Frietta River

Segment Boundary Downstream

B

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Yes – Water Resources Project

Direct and Adverse Effect

Scenario C

C

Nearby Faraway Wilderness

US Hwy 21

N

Legend

Private Land

State Land

Wilderness

Highway County Road Trail River Tributary

Project Location

Recreational Segment

Wild Segment

Santa Frietta River

Segment Boundary Downstream

C

87

Scenario C

C

Nearby Faraway Wilderness

US Hwy 21

N

Legend

Private Land

State Land

Wilderness

Highway County Road Trail River Tributary

Project Location

Recreational Segment

Wild Segment

Santa Frietta River

Segment Boundary Downstream

C

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Yes – Water Resources Project

Invade or Unreasonably

Diminish

Section 7 Framework

Kind of Activity • Water Resources Project

Standards to Apply • OHW, bed and banks • Inside, outside corridor • Designated or study river

Federal Agency Role • Licensing or Assisting • River Administering Agency

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Break

• 15 minute Break • Come back promptly!

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Section 7 Determinations

• When do you do a Section 7? • What is the process? • What do they include? • Who completes? • Who signs?

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When is a Section 7 required?

Kind of Activity

Standards to Apply Federal Agency Role

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• FERC Licensed • WRP with potential

to affect free flow or ORV’s

• On or Directly Affecting • Direct and Adverse Effects • Invade the Area or Diminish

Values

• Federal Assistance • River Administering Agency

Section 7 Process

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Proposed Activity Submitted for Review

ID Team Project Review Partners Project

Proponent

Section 7 Analysis

Signed Section 7 Determination

NEPA Process

Section 7 Process

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Proposed Activity Submitted for Review

ID Team Project Review Partners Project

Proponent

Section 7 Analysis

Signed Section 7 Determination

NEPA Process

Section 7 Contents

River Description Management Direction Project Activity WRP Description

Evaluation Process Analysis of Results

Determination

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Section 7 Contents • Description of River

– Length – Classification – Ownership – Landscape Character – Outstandingly Remarkable

Values (ORVs)

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Section 7 Contents

• Key Direction from Comprehensive River Management Plan (CRMP) – Management Goals – CRMP Direction

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Section 7 Contents • Project Activity - WRP Description

– Project Proponent – Purpose/Need for Project – Geographic Location: Duration

of Proposed Activities – Magnitude/Extent of Proposed

Activities – Relationship to Past/Future

Management – Additional Facts

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Section 7 Contents • Evaluation Process

– Describe How the Proposed Activity Will Directly Alter:

• Within-Channel Conditions • Riparian and/or Floodplain

Conditions • Upland Conditions

– Evaluate How Changes in On-Site Conditions Can/Will Alter Existing Hydrologic or Biologic Processes

99

Section 7 Contents

• Evaluation Process (cont.) – 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

100

Section 7 Contents

• Make the Section 7 Determination – Explain rationale – Agency Responsible Official

Signature

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Section 7 Responsibilities

• River-administering Agency – ID Team – Contractor – Partners

• Proponent – Can assist – Often provides money

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Section 7 Delegations

• Forest Service – Regional Forester

• National Park Service – NPS Director

• BLM – State Director

• Fish and Wildlife – Regional Refuge Manager

103

Section 7 Exercise

• Place the provided facts within the relevant section of the Section 7 Determination.

• Work in small teams • Discuss other factors you

may want to include or projects factors you have used in the past.

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Tested our Knowledge

• Life-like scenarios where different standards apply

• Re-take pretest to see how

much you’ve learned

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Insert Post-Test

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References WSRA Section 7 : 16 USC 1278 USDA Regulation – 36 CFR 297 IWSRCC Guidance

Section 7 technical paper Framework for evaluating WRP

Section 7 flowchart WSR Guide to Riverfront Property Owners

Agency Direction BLM Manual 6400 Forest Service Manual 2354 NPS (Working on Guidance) USFWS

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108 108

Additional Resources IWSRCC

www.rivers.gov

River Management Society www.river-management.org

River Network www.rivernetwork.org

Course Goals

• Overview of the WSRA • Intent of WSRA & Section 7 • Create a framework for

Section 7 statutory text • Understand the components

of a Section 7 Determination • Provide tools for river

managers to apply Section 7

109

Acknowledgements Interagency Wild & Scenic

Rivers Coordinating Council

rivers.gov River Management Society

river-management.org

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