Merced Wild and Scenic River Comprehensive Management Plan / DEIS 4-1 

4. SECTION 7 OF THE WILD AND SCENIC RIVERS ACT – 

DETERMINATION PROCESS FOR WATER 

RESOURCES PROJECTS 

The U.S. Congress enacted the Wild and Scenic Rivers Act (WSRA) in 1968 to end decades of damming, 

dredging, and diversion of some of the nation’s most spectacular waterways. Section 7(a) is a key provision 

of WSRA that directs federal agencies to protect the free-flowing condition, water quality, and 

outstandingly remarkable values (ORVs) of designated Wild and Scenic Rivers. Section 7 requires a rigorous 

and consistent interagency process for protecting river resources. This chapter describes the process used 

to protect the free-flowing condition of the Merced River when a proposed water resources project triggers a 

review and determination under section 7 of WSRA. Water resources projects include, but are not limited to, 

dams, water diversion projects, fisheries habitat and watershed restoration/enhancement projects, bridge 

and other roadway construction/ reconstruction projects, bank stabilization projects, channelization 

projects, levee construction, recreation facilities such as boat ramps and fishing piers, and activities that 

require a section 404 permit from the U.S. Army Corps of Engineers5. 

While no new dams will be proposed on the Merced River in the future due to its status as a Wild and Scenic 

River, other potential water resources projects along the Merced Wild and Scenic River could be proposed, 

including projects with the purpose of improving the free-flowing condition of the river or enhancing a 

particular outstandingly remarkable value. The National Park Service (NPS) will conduct a “Section 7 

Determination Process” as described in the next section of this chapter for all proposed projects that 

require review under section 7 of WSRA. Any proposed project that meets the following conditions must 

undergo an initial review, as depicted in Table 4-1, to confirm whether the proposed project is subject to 

the Section 7 Determination process: 

 Proposed projects in the bed or banks of the Merced River, or 

 Proposed projects in the bed or banks of a river located above, below, or on a stream tributary to 

the Merced River 

The next section in this chapter describes the “Section 7 Determination Process.” 

The NPS will conduct the Section 7 Determination process for the preferred alternative in the final Merced 

River Plan, and the analysis and determination will be included in the Record of Decision for the plan. 

 

5 Section 404 of the Clean Water Act requires that a permit is obtained from the U.S. Army Corps of Engineers, prior to 

beginning any non-exempt activity involving the placement of dredged or fill material in waters of the e United States, 

including wetlands. 
SECTION 7 OF WSRA – DETERMINATION PROCESS FOR WATER RESOURCES PROJECTS

4-2 Merced Wild and Scenic River Comprehensive Management Plan / DEIS

TABLE 4-1: DETERMINING THE NEED FOR A SECTION 7 DETERMINATION UNDER WSRA 

When is a Determination under Section 7 of the Wild and Scenic Rivers Act Required? 

IF IF 

 The project is proposed in the bed or banks of a 

designated river or congressionally authorized 

study river 

 The project is proposed in the bed or banks of a river 

below, above, or on a stream tributary to a designated 

river or congressionally authorized study river 

AND AND 

 The project is proposed by a federal agency or it 

requires some type of federal assistance such as 

a permit, license, grant, or loan 

 The project is proposed by a federal agency or it 

requires some type of federal assistance such as a 

permit, license, grant, or loan 

AND 

 The project is likely to result in effects within a 

designated river or congressionally authorized study 

river 

THEN THEN 

A Section 7 Determination is required under when 

both of the above conditions exist. 

A Section 7 Determination is required under when all 

of the above conditions exist. 

THE SECTION 7 DETERMINATION PROCESS 

Any federally assisted water resources project that would have a “direct and adverse effect” on the values for 

which a river was added to the Wild and Scenic Rivers System is prohibited. The NPS is responsible for 

making the final determination as to whether a proposed water resources project would have a direct and 

adverse effect on river values in the portion of the Merced River within Yosemite. The NPS must coordinate 

the Section 7 Determination process with other agencies that are required to review and comment on the 

project. Depending on the type and location of the project, such agencies might include the U.S. Fish and 

Wildlife Service, the Environmental Protection Agency, the U.S. Forest Service, the Bureau of Land 

Management, and the U.S. Army Corps of Engineers. “Consultation and Coordination” (Chapter 10) 

provides specific information on NPS consultation with other agencies. Review of projects subject to 

Section 7 of WSRA will also be coordinated with other environmental review processes as appropriate, such 

as those required by NEPA and the National Historic Preservation Act (NHPA). In accordance with WSRA, 

potential water resources projects that could have a direct and adverse effect on the values of a designated 

river must be: (1) redesigned and resubmitted for a subsequent Section 7 Determination, (2) abandoned, or 

(3) reported to the Secretary of the Interior and Congress. 

Federal Projects Below, Above, or on Tributaries of a Wild and Scenic River 

Proposed non-hydroelectric projects with federal assistance that would take place below, above, or on the 

tributaries of a Wild and Scenic River have a slightly different evaluation standard than projects proposed 

directly in the bed and banks of a Wild and Scenic River. These projects must not “invade the area or 
The Section 7 Determination Process 

Merced Wild and Scenic River Comprehensive Management Plan / DEIS 4-3 

unreasonably diminish” wild and scenic river values. Typical projects that meet this definition are water 

resources projects that would be visible from the designated river, dams, and upstream diversion structures, 

because such projects have the potential to affect scenic, recreational, and fish or wildlife values in the 

designated river. 

Steps in the Wild and Scenic Rivers Act Section 7 Determination Process 

The following WSRA Section 7 Determination process is adapted from a technical report by the Interagency 

Council (IWSRCC 2004). In conformance with the guidance contained in that report, the NPS will 

undertake the following steps as part of its Section 7 Determination process for non-emergency projects: 

 Describe the purpose and need of the proposed project and its location, duration, magnitude, and 

relationship to past and future management activities. 

 Analyze the potential impacts of the proposed project on the values for which the river was 

designated wild and scenic. This analysis will follow the guidelines provided by the Wild and Scenic 

Rivers Act, Section 7 Technical Report of the Interagency Council (2004), and other applicable 

guidance. 

 Define the likely duration of the projected impacts. 

 Use this analysis to make a WSRA Section 7 Determination. This determination will document the 

effects of the proposed activity, including any direct and adverse effects on the values for which the 

river was designated as wild and scenic. 

 Redesign and resubmit any water resources projects found to have a direct and adverse effect on 

the values of this designated river for a subsequent Section 7 Determination. In the event that a 

project cannot be redesigned to avoid direct and adverse effects on the values for which the river 

was designated, the NPS will either abandon the project or advise the Secretary of the Interior in 

writing and report to Congress in writing in accordance with WSRA section 7(a). 

 Follow WSRA section 7 procedures to determine if projects above or below the designated river or 

on its tributary streams would invade the area or unreasonably diminish the scenic, recreational, 

and fish and wildlife values present in the designated corridor. 

Emergency projects, such as repairing a broken sewer line in or near the river, may temporarily proceed 

without a Section 7 Determination. However, a Section 7 Determination must be completed in a timely 

manner upon completion of the project. Emergency water resources projects that are later determined to 

have a direct and adverse effect on the river values shall be mitigated based on the findings of the Section 7 

determination. 

Flowcharts to Illustrate WSRA Section 7(a) Determination Process 

The Interagency Council’s Wild and Scenic Rivers Act: Section 7 Technical Report (IWSRCC 2004) suggests 

procedures to evaluate the effects of proposed water resources projects. The Interagency Council website6

also includes examples of section 7 determinations for common types of water resources projects. The 

Interagency Council developed three flowcharts to guide managers in determining whether a proposal is 

subject to review under section 7(a) and, if so, which standard and evaluative procedure applies. These 

flowcharts, as illustrated in Figure 4-1, Figure 4-2 and Figure 4-3 also reference the appropriate detailed 

 

6 http://www.rivers.gov/rivers/documents/section7/flowchart-introduction.pdf 
SECTION 7 OF WSRA – DETERMINATION PROCESS FOR WATER RESOURCES PROJECTS

4-4 Merced Wild and Scenic River Comprehensive Management Plan / DEIS

evaluative process in the Interagency Council’s Section 7 technical report. These flowcharts would be the 

basis of the section 7 determination process for the Merced River Plan/DEIS. 

Using the flowcharts, managers would follow the track for proposed water resources projects located either 

within the Merced River corridor, or outside (upstream, downstream, or on a tributary to) the Merced River 

corridor (Figure 4-1). Figure 4-2 and Figure 4-3 provide a more detailed explanation of the process and may 

be used independent of Figure 4-1. Figure 4-2 would be used for water resources projects that would be 

located within a designated river corridor, and Figure 4-3 would be used for water resources projects that 

would be located outside a designated river corridor. 
The Section 7 Determination Process 

Merced Wild and Scenic River Comprehensive Management Plan / DEIS 4-5 Figure 4-1: Wild and Scenic Rivers Act Section 7(a) Process Flowchart 

WRP3 assisted by federal agency

Any construction4 that affects a 

WSR’s free-flowing condition 

WRP2 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”

Evaluative Standard:

“Direct and adverse 

effects”

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

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. 

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:  License or exemption by FERC  Project works within bed, banks 

or corridor 

Requires: Assistance5 by a federal agency 

 Within bed or banks6

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 orscenery, recreation, fish or wildlife valuespresent 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) within a 

Wild and Scenic River1 

(Within” Flowchart) 

Water Resources Project (WRP) 

outside a WSR 

(Outside” Flowchart) 
SECTION 7 OF WSRA – DETERMINATION PROCESS FOR WATER RESOURCES PROJECTS

4-6 Merced Wild and Scenic River Comprehensive Management Plan / DEIS

FLOWCHART FOOTNOTES 

1

 A Wild and Scenic River includes the river channel and adjacent areas within the Wild and Scenic River 

boundaries pursuant to Section 3(a) or 2(a) (ii) of WSRA. 

2

 A water resources project (i.e., a hydropower project licensed under the Federal Energy Regulatory 

Commission) refers to construction of any dam, water conduit, reservoir, powerhouse, transmission line, 

or other project work under the hydropower provisions (license and exemption) of the Federal Power 

Act (Part I), as amended (41 Stat. 1063; 16 USC 791a et seq.). Other facilities licensed by the Federal 

Energy Regulatory Commission under the Federal Power Act (e.g., interstate power transmission lines or 

natural gas pipelines) are not prohibited outright. They are subject to review under Section 7(a) only if 

they include construction as described in Footnote 6. 

3 A water resources project is federally assisted construction that would affect a designated river’s freeflowing characteristics, as defined in Section 16(b) of WSRA (see footnote 6). Examples of water 

resources projects include, but are not limited to: fisheries habitat and watershed 

restoration/enhancement projects; water diversion projects; transmission lines and pipelines; bridge and 

other roadway construction/reconstruction projects; dams; water conduits; bank stabilization projects; 

channelization projects; powerhouses; levee construction; reservoirs; recreation facilities such as boat 

ramps or fishing piers; or dredge and fill projects that require a federal permit, such as from the U.S. Army 

Corps of Engineers as required by Section 404 of the Clean Water Act (33 USC 1344). 

4

 Construction refers to any action carried out with federal assistance that would affect the free-flowing 

characteristics of a Wild and Scenic River.

5 Assistance refers to any loan, grant, license, or other assistance in the construction of any water resources 

project. 

6 ‘Bed or banks’ is an interpretation of Section 16(b) of WSRA, which defines free flowing, in part, as 

“existing or flowing in natural condition without impoundment, diversion, straightening, riprapping, or 

other modification of the waterway.” Generally, the applicability of Section 7(a) is limited to the area 

within the ordinary high-water mark) of the river. The ordinary high-water mark is defined in 33 CFR 

Part 328.3(e) as “...that line on the shore established by fluctuations of water and indicated by physical 

characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of 

soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that 

consider the characteristics of the surrounding areas.” 

7 Requires a nexus between the proposed upstream, downstream, or tributary project and the Wild and 

Scenic River or such project is not a water resources project for purposes of a Section 7(a) determination. 

Projects that have the potential to affect the river’s free flow or the scenery, recreation, fish, or wildlife 

values of a Wild and Scenic River are dams, upstream diversion structures and projects that can be seen 

from the Wild and Scenic River, as they have the potential to affect these characteristics and values in the 

designated river. 
The Section 7 Determination Process 

Merced Wild and Scenic River Comprehensive Management Plan / DEIS 4-7 

Figure 4-2: Section 7(a) Flowchart for a Water Resources Project 

Within a Wild and Scenic River Corridor1 

NO NO 

NO 

YES 

NO 

Does project5 involve 

construction in a 

Wild and Scenic 

River’s bed or banks6

(below ordinary high 

water mark)? 

Project not 

subject to 

Section 7(a) 

Project not 

subject to 

Section 7(a) 

Wild and Scenic Rivers Act 

prohibits any project works 

licensed under Part I of the 

FPA within a Wild and Scenic 

River corridor. 

Project not 

subject to 

Section 7(a) 

Transmit finding to FERC. Transmit finding to federal assisting agency.

Is project federally assisted2

 construction3 (loan, grant, 

license or other assistance)?

YES 

YES 

Evaluate water resources project under “direct 

and adverse effect” standard. 

Determine project effects on free-flowing 

condition, water quality and each outstandingly 

remarkable value. Use the procedure outlined in 

Appendix C of the council’s Section 7 technical 

report. 

YES 

Is project located within a Wild and Scenic River 

corridor?

Is project4 licensed by the 

Federal Energy Regulatory 

Commission (FERC) under 

Federal Power Act (FPA)? 

“Any dam, water conduit, 

reservoir, powerhouse, 

transmission line, or other 

project works under FPA”
SECTION 7 OF WSRA – DETERMINATION PROCESS FOR WATER RESOURCES PROJECTS

4-8 Merced Wild and Scenic River Comprehensive Management Plan / DEIS

Figure 4-3: Section 7(a) Flowchart for a Water Resources Project Outside 

of a Wild and Scenic River Corridor

YES 

NO 

NO 

Is project4 located within river’s bed or banks5

upstream, downstream, or on a tributary to a Wild 

and Scenic River corridor? Project not subject to 

Section 7(a) 

Project not subject to 

Section 7(a) 

Is project federally assisted2

 construction3 (loan, 

grant, license or other assistance)?

YES 

Project not subject to 

Section 7(a) 

Does water resources project6 have potential to 

affect free-flow or scenery, recreation, fish or 

wildlife values present within a Wild and Scenic 

River?

NO 

YES 

Evaluate under “invade the area or unreasonably 

diminish” standard. Use procedure outlined in 

Appendix D of the council’s technical report. 

Transmit finding to federal assisting agency.