section 7 determinations – how to complete a section 7 - randy welsh, steve chesterton - usda...
TRANSCRIPT
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 [email protected] 202-205-9333
Steve Chesterton Wild and Scenic Rivers/ Wilderness – WO FS [email protected] 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
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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
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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
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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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