Upper Missisquoi and Trout Rivers Management plan to be completed in 2012

One of the study committee’s responsibilities in applying for federal Wild & Scenic designation is the creation of a management plan for the study rivers.  The management plan provides relevant background information on the designation process, describes the key features of the rivers (called Outstandingly Remarkable Values, or ORVs) that qualify them for Wild & Scenic designation, and outlines the priorities for management of the river and its ORVs if designation is achieved.  The basic structure of the management plan was discussed and agreed upon by the study committee at the November 17^th, 2011 meeting in Richford, VT.  Please review the draft table of contents of the management plan; feel free to comment here or contact us about the plan structure or content.  You may view the draft plan outline here.

What is a Wild and Scenic River Study?

A congressionally authorized study to determine whether a particular river is eligible and suitable for designation as a National Wild and Scenic River under the Wild and Scenic Rivers Act which was enacted by Congress in 1968.  The process is entirely voluntary and in the hands of the local community members who are members of the Study Committee.  The National Park Service serves as a resource during the study.

What is a Wild and Scenic River Study Committee?

This Study Committee includes members from each of the ten towns and villages in the study area:  Berkshire, Town of Enosburgh, Village of Enosburg Falls, Jay, Lowell, Montgomery, Village of North Troy, Richford, Westfield, and the Town of Troy.  The official appointees were appointed by the town Selectboards.  There are also partner organizations on the Committee including:  the Vermont Agency of Agriculture, the National Park Service, and the Northwest Regional Planning Commission.  The mission of the committee is to gather information about resources along the rivers, protections which currently exist for these resources, and information about whether the local community understands and supports designation.

Is there a Committee established after designation?

If designation occurs a permanent committee will be established to manage the federal funds that typically result from designation.  I believe it will be formed similarly to the current committee where towns along the designated reach appoint members to the committee.  Either the National Park Service hires or designates a staff person to assist the committee and manage the river, or staff could also be hired through a partner organization such as the MRBA (as has occurred with staff for the Study – Shana). An example of how this occurred for the Lamprey River in New Hampshire can be found at: http://www.rivers.gov/publications/act/104-333.pdf (see Sec. 405).

What are the potential positive effects of designation?

• If designated, Congress would appropriate funds for projects to preserve the recreational, scenic, historic, cultural, natural, and geologic resources in the upper Missisquoi and Trout Rivers.  These funds have been over $100,000 annually.
• Landowners would still be the stewards of their lands.
• If attracting tourists is a goal, designation could be a great marketing tool for local businesses and regions supporting ecotourism.  For example, there could be a check off list developed of New England’s Wild and Scenic Rivers, akin to those for the high peaks or birding destinations
• Applications for grants may be more competitive in the areas designated Wild & Scenic.
• A local Advisory Committee would be established to oversee the designation funds, and provide outreach for the recommendations in the Management Plan.
• This Committee would have input during the review of projects (Section 7 Review) which are fully or partially federally funded, construction/development, and having a direct impact on the river.  These types of projects would be reviewed even without designation, but designation provides more local input into the permitting of these projects.
• The Wild and Scenic Act was created at a time of large-scale dam building.  In an effort to balance dammed rivers with those which were free-flowing, there is a stipulation in the Act which prevents the establishment of new dams or hydro facilities on the designated portion of the river.  This does not affect pre-existing, permitted hydro facilities such as those in Troy and Lowell.  It also does not prevent existing dams from being retrofitted for purposes other than hydro.

Does Wild and Scenic Designation create a 1/4 mile protected corridor along the river?

It is probably more accurate to say that designation “establishes a flexible boundary on both sides of the river.” However, even this is subject to misinterpretation.

What the Wild and Scenic Rivers Act (WSRA) actually says in Section 3(b) is:

“The agency charged with the administration of each…wild and scenic river…shall…establish detailed boundaries…which…shall include an average of not more than 320 acres of land per mile measured from the ordinary high water mark on both sides of the river…”

(The complete act may be found at: http://www.rivers.gov/publications/act/current-act.pdf)

Important points to keep in mind:

1. That works out to ¼ mile on each side of the river, but does not set ¼ mile as the boundary.
2. The flexible nature of the boundary is intended to enable the Study Committee to capture most or all of the Outstandingly Remarkable Values (ORVs) within the boundary by varying its width as need be.  See our ORV blog http://vtorvs.blogspot.com/  or our website (http://www.vtwsr.org/) to find out more about ORVs.
3. On rivers where there is existing federal ownership—i.e. a national forest—it clarifies which lands are subject to the WSRA and which are not.  For rivers where Congress has authorized federal land acquisition to implement the designation, the boundary established under Section 3(b) identifies which lands can be acquired, i.e. those within the boundary—see Section 6(a).  The upper Missisquoi and Trout Wild and Scenic rivers would be partnership rivers in private, not federal, ownership.
4. For most—if not all—partnership rivers, Congress has expressly PROHIBITED the administering agency from acquiring federally owned land.

Even more importantly is how the boundary gets used once established in the management plan by the Study Committee—which is limited to Section 7 determinations and thus only applies to the construction of federally assisted water resources projects. Even then, the application of the boundary is simply to determine which standard the administering agency must use in evaluating the potential effect of the project on the rivers resources.

Jim McCartney - National Park Service

A member of a Westfield Selectboard asked if there was a specific buffer requirement in which there was Wild and Scenic protection.

If the Study Committee pursues designation, then they will establish boundaries for the designated area.  There is not a set rule for the size of the border along the designated river. The flexible nature of the boundary is intended to enable the Study Committee to capture most or all of the Outstandingly Remarkable Values (ORVs) within the boundary by varying its width as need be.  Having a boundary will not mean that the area is then controlled by the federal government.  Regulations which currently govern land use will still be in effect.  Please see the previous post entitled “Does Wild and Scenic Designation create a 1/4 mile protected corridor along the river?” for more information.

Ed states: There was talk of possibly including feeder streams in the designation. With this in mind, is there a "zone" or a specific distance from the center of the river the W&S designation would effect?

NPS Staff response: We are looking broadly right now at resources that are in some way related to the river. The time to narrow things down will be after we collect information about the rivers' resources at the end of the study - all tributaries to the Missisquoi and Trout Rivers are currently considered during the study. If our ORV work indicates that there are tributaries that have exceptional value and importance, the Study Committee could consider recommending that they be included in designation (subject to local support). In terms of deliniating a specific “zone” of influence along the river, we will have to wait and see what our management recommendations are, although we already know for sure that there is no “zone” of new federal land use restriction.

Ed goes on to ask whether there is a commitment of funds that the towns need to provide after designation.

NPS staff reply - Once designated, it would be the expectation that Congress would provide funds on an annual basis to hire the support staff and assist in Management Plan implementation through education and outreach. Just as any management recommendation that the Study Committee suggests are voluntary, any town/community support (financial or otherwise) would be voluntary both during the study and post-designation, should designation occur.

Are all areas of the rivers classified the same way under designation?

There are three classifications under designation:

Wild river areas are those with the cleanest water, and the least amount of development around the shoreline.  These areas are typically only accessible by trail, and do not have impoundments.

Scenic river areas are those with clean water, and minimal development around the shoreline.  These areas may be accessible in areas by roads, and do not have impoundments.

Recreational river areas are those which may have some development along shorelines.  They are readily accessible by roads or railroads, and may have had historical impoundments or diversions.

Jeff asks -  

Can certain sections of the river, say an un-dammed tributary be designated "wild", while a different area that is dammed designated "scenic" or is it all of 1 designation or another?

Thanks for letting me know about your question.  The folks at the NPS confirmed my thought that different segments can be designated wild, scenic or recreational along the river, and that the whole area proposed for designation does not need to be just one of those categories.  So the answer to your questions is yes.

Thanks,

Shana

Ed asks: What are the guidelines, publication or regulations that the National Parks Service uses to oversee the W&S designation?

The National Park Service works with an interagency group known as the Interagency Wild & Scenic Rivers Council to ensure consistency in administering the Act. The Council has a number of publications on its website including a comprehensive list of Questions and Answers that can be found at:  http://www.rivers.gov/publications/q-a.pdf

Some additional resources may be found on our website: http://www.vtwsr.org/

You may access the whole W&S ACT legislation at http://www.rivers.gov/publications/act/current-act.pdf and the amendment that added our study to the act can be found at http://www.rivers.gov/publications.html#wsract scroll down to 2009 "Added Missisquoi and Trout for study"

Will Hunting and Fishing Be Affected?

No.  Hunting and fishing laws are unaffected by the designation.

What deliverables come out of the study process?

Jamie Fosburgh's response: In the end, what Congress needs form "us" is a report that addresses: 1) do the rivers qualify for designation by having at least one ORV, etc. (or do different segments qualify); and 2) does designation make sense (this includes, do people want it, can the river be effectively managed to protect identified outstanding values, etc.)

I put the "us" in quotes above, because we will be reporting a wide range sentiment, including the NPS, the Study Committee, State agencies, the towns and their citizens, riverfront landowners, MRBA, and other partner organizations. All of the entities we have collected data from over the study process.

The Study Committee will produce two documents: the report to congress and a voluntary management plan. It is this second document that really expresses what the communities and river stakeholders want for the future of the river. It should have value to the communities and partners whether or not a Wild and Scenic designation is pursued. And, it is the key to answering the question of whether designation makes sense.

Tell me more about the voluntary Management Plan.

The Study Committee develops a Management Plan during their three year river study.  This plan is a compilation of the information collected during the study, and designed to help communities understand the resources and protections which exist for their river, and the recommendations gathered by the Study Committee.  This plan is non-regulatory, and the management strategies would be implemented through education and outreach.

Why Do We Need a Watershed Management Plan?

Completion of a Management Plan is one of the requirements of the Wild and Scenic Study.  

The Management Plan is a non-regulatory document meant to synthesize the information gathered during the three years of the Wild and Scenic Study.  The plan will illustrate whether or not the Study Committee recommends designation of the rivers, and any other recommendations for management which the Committee formulates after its three year study.

If the Towns and Villages Accept the Management Plan, Do They Have to Commit to the Recommendations Included in the Plan?

Any water resource protection or conservation initiatives related to the Wild and Scenic Management Plan are implements on an entirely voluntary basis.  If Wild & Scenic Designation occurs, the Management Plan would be implemented by a locally led Advisory Committee established in the same way as the Study Committee (appointed by local selectboards) with the support of the National Park Service.  Annual federal funds are typically available as a result of designation that would be used to support implementation of the management plan.

What is the Section 7 process?

Designation provides some general protections for the designated area.  Any time a federal agency undertakes a project they must evaluate its environmental impacts using the requirements set forth in NEPA – the 1970 National Environmental Policy Act.  During the Environmental Impact Statement (EIS) required by NEPA, if a project is proposed in the designated area, is federally funded (at least in part), and has proximity to the rivers then the Wild and Scenic Advisory Committee must be consulted.  Wild and Scenic Designation doesn’t change anything about the NEPA process, but it provides direct, local input in the process through the Advisory Committee.  The Committee may provide insight into any way that the project may impact the ORVs identified during study, and provide suggestions for lessening these impacts.

If projects are federally assisted, construction or development, water related, and have a direct relationship to the designated section of the rivers then the project is reviewed under Section 7 of the Wild and Scenic Act.  If the project demonstrates likely adverse impact on the rivers, Section 7 gives the Advisory Committee and the National Park Service veto power over the project.  In the history of Partnership Wild and Scenic Rivers in New England (meaning those designated rivers on private rather than federal property) there has only been one project which did not occur due to the restrictive project alterations required by NPS and the Advisory Committee.  This project was extreme, it required three years of 24 hour/day dredging of a river for boat access to a liquefied natural gas facility, and was along one of the largest anadromous fish runs left in MA. 

Typically, if a project falls under Section 7 review it is reviewed by the local Advisory Committee.  If there are concerns, suggestions are made about changes to the project design or location which would lessen any potential impacts on the designated rivers.  Most often, the NPS and the Advisory Committee are in support of projects which are supported by the towns.  There is still some, but lessened, protections for areas up and downstream, and the tributaries which feed the designated area.  They are in place to be sure that projects do not invade the designated area which have an unreasonably adverse impact on it.

Designation provides local input into projects proposed on designated rivers and funding to carry out desirable projects along the rivers.  It also provides protections for the outstandingly remarkable resources we are currently identifying with the help of our local communities.  Please see our January 2011 meeting minutes supplement on our website (www.vtwsr.org) for a more complete discussion of Section 7 review (or the publications on the National Wild and Scenic Rivers website (http://www.rivers.gov/).

What types of projects fall under Section 7 review?

These projects must:

be a federally assisted water resource project through funding or permits ( for example an Army Corps permit, a clean water act permit (NPDES), etc…)

and

                be a construction or development project (not just a study)

and

                be water related

and

                have a direct relationship to the designated river

Section 7 review would occur for new projects after designation with all of these criteria.  Ask first - is it a federally assisted project?  If not, then it doesn’t fall under Section 7 review.  The National Park Service could have veto power over these projects which are reviewed under Section 7, but they have not ever vetoed a projects on any of the 8 partnership Wild and Scenic rivers in New England.  Typically suggestions are made in order to protect the outstandingly remarkable values (ORVS) which the Study Committee identifies and illustrates in the voluntary management plan.

Will this Section 7 process cause extra costs or delays?

Typically not.  Federally funded projects such as those that would fall under Section 7 review would be reviewed whether there is Wild and Scenic designation or not.  Having a local Advisory Committee means that local appointees will be contacts, and be able to submit comments about potential projects.  The Advisory Committee would likely meet once a month, and address any pending comments in an efficient manner.

Would each project, such as those under various agricultural programs, need an individual blessing?

Typically not.  The Study Committee will strive to specifically address these types of programs in the voluntary management plan.  The Study Committee could identify these programs that are already doing good work, and give blanket support so that individual projects wouldn’t have extra hoops to jump through after designation.  It would be important to promote good programs in the management plan, and say we’d like to see them continue.  An example of this type of agricultural program working to improve water quality is CREP (Conservation Reserve Enhancement Program).

What advantages are there for the towns to support designation which requires Section 7 review for projects which are federally assisted, construction or development, water related, and have a direct relationship to the designated section of the rivers?

Towns already have to comply with NEPA (the National Environmental Policy Act) if federal projects proposed.  Having an Advisory Committee gives a venue for towns (through their official appointees to the Advisory Committee) to comment on projects.  Comments given by the Advisory Committee can give more weight in the federal arena to local views on a federal project.

Why does Wild and Scenic designation prohibit new dams or hydro projects may occur in the designated area?

The Act states:  “The Congress declares that the established national policy of dam and other construction at appropriate sections of the rivers of the United States needs to be complemented by a policy that would preserve other selected rivers or sections thereof in their freeflowing condition to protect the water quality of such rivers and to fulfill other vital national conservation purposes” (1271, http://www.rivers.gov/publications/act/current-act.pdf).  The Wild and Scenic Act’s stance on no new dams is best understood by looking at the Act’s origin in 1968.  This was a time of large dam building.  Some folks in congress were noticing that the U.S. was losing its freeflowing rivers.  Part of the intent of the act was to free flowing rivers in the U.S. to balance the dam building. 

The Act states:  “The Federal Energy Regulatory 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 (41 Stat. 1063), as amended (16 U.S.C. 791a et seq.), on or directly affecting any river which is designated in section 1274 of this title as a component of the national wild and scenic rivers system or which is hereafter designated for inclusion in that system, and 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, as determined by the Secretary charged with its

administration. Nothing contained in the foregoing sentence, however, 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 river as a component of the National Wild and Scenic Rivers System” (1278a, http://www.rivers.gov/publications/act/current-act.pdf). 

The Federal Power Act gave tremendous power to FERC over other regulations and agencies in licensing for hydro production.   The W&S Act tried to create a balance between FERC/hydro production and protecting freeflowing rivers.  Banning hydro may or not make sense in our area.  On the other hand, land, property, and water rights given to a developer when hydro is developed might be in conflict with other things in the town such as fish habitat, etc.  We are currently researching existing and potential hydro sites in the study area.  Please contact us if you would like to let us know about a potential site at info@vtwsr.org.

Questions from the Jay Selectboard Meeting

Jay Selectboard members wanted to know who had precedence if there was a conflict with a project proposed on a designated Wild and Scenic river.

I answered that the only time that the National Park Service would have veto power, and therefore precedence would be under the “Section 7 Review” of projects which are federally permitted or funded (all or in part), construction/development projects, and directly related to the river and are believed would have a direct and adverse effect on the values for which the river was designated.  Most often, Section 7 review results in the NPS and the Advisory Committee making recommendations for variations in proposed projects which would balance development with the protection of the outstandingly remarkable values (ORVs) for which the river was designated.  Their veto power has never been used in any of New England’s Partnership Wild and Scenic Rivers. 

If you have questions or comments about the Wild and Scenic study or designation...

Please post your appropriate questions and comments here, or contact us directly at:

info@vtwsr.org

802-393-0076

2839 VT Route 105
East Berkshire, VT 05447

Our website also has the most up-to-date information and more FAQs at http://www.vtwsr.org/

Our Study Committee meetings are the 3rd Thursday of each month at 7pm.  Visit our website for details.