USC Subchapter LIXCCC

in effect

16 U.S.C. § 410eeee New River Gorge National Park and Preserve Designation

(a) Short titleThis section may be cited as the “New River Gorge National Park and Preserve Designation Act”. (b) Designation of New River Gorge National Park and New River Gorge National Preserve, West Virginia(1) RedesignationThe New River Gorge National River established under section 1101 11 See References in Text note below. of the National Parks and Recreation Act of 1978 (16 U.S.C. 460m–15) shall be known and designated as the “New River Gorge National Park and Preserve”, consisting of—(A) the New River Gorge National Park; and (B) the New River Gorge National Preserve. (2) New River Gorge National ParkThe boundaries of the New River Gorge National Park referred to in paragraph (1)(A) shall be the boundaries depicted as “Proposed National Park Area” on the map entitled “New River Gorge National Park and Preserve Proposed Boundary”, numbered 637/163,199A, and dated September 2020. (3) New River Gorge National Preserve; boundaryThe boundaries of the New River Gorge National Preserve referred to in paragraph (1)(B) shall be the boundaries depicted as “Proposed National Preserve Area” on the map entitled “New River Gorge National Park and Preserve Proposed Boundary”, numbered 637/163,199A, and dated September 2020. (c) Administration(1) In generalThe New River Gorge National Park and Preserve shall be administered by the Secretary of the Interior (referred to in this section as the “Secretary”) in accordance with—(A) this section; (B) the laws generally applicable to units of the National Park System, including—(i) section 100101(a), chapter 1003, and sections 100751(a), 100752, 100753, and 102101 of title 54; and (ii) chapter 3201 of title 54; and (C) title XI of the National Parks and Recreation Act of 1978 (16 U.S.C. 460m–15 et seq.),1 except that the provisions of section 1106 1 of that Act (16 U.S.C. 460m–20) relating to hunting shall not apply to the New River Gorge National Park. (2) Hunting and fishing(A) HuntingHunting within the New River Gorge National Preserve shall be administered by the Secretary—(i) in the same manner as hunting was administered on the day before December 27, 2020, in those portions of the New River Gorge National River designated as the New River Gorge National Preserve by subsection (b)(3); and (ii) in accordance with—(I) section 1106 1 of the National Parks and Recreation Act of 1978 (16 U.S.C. 460m–20); and (II) other applicable laws. (B) FishingFishing within the New River Gorge National Park and Preserve shall be administered by the Secretary—(i) in the same manner as fishing was administered within the New River Gorge National River on the day before December 27, 2020; and (ii) in accordance with—(I) section 1106 1 of the National Parks and Recreation Act of 1978 (16 U.S.C. 460m–20); and (II) other applicable laws. (C) Private landNothing in this section prohibits hunting, fishing, or trapping on private land in accordance with applicable State and Federal laws. (3) Land acquisition(A) Additional land for national preserve(i) In generalThe Secretary may acquire land or any interest in land identified as “Proposed Additional Lands” on the map entitled “New River Gorge National Park and Preserve Proposed Boundary”, numbered 637/163,199A, and dated September 2020, by purchase from a willing seller, donation, or exchange. (ii) Boundary modificationOn acquisition of any land or interest in land under clause (i), the Secretary shall—(I) modify the boundary of the New River Gorge National Preserve to reflect the acquisition; and (II) administer the land or interest in land in accordance with the laws applicable to the New River Gorge National Preserve. (B) Visitor parking(i) In generalThe Secretary may acquire not more than 100 acres of land in the vicinity of the New River Gorge National Park and Preserve by purchase from a willing seller, donation, or exchange to provide for—(I) visitor parking; and (II) improved public access to the New River Gorge National Park and Preserve. (ii) AdministrationOn acquisition of the land under clause (i), the acquired land shall be administered as part of the New River Gorge National Park or the New River Gorge National Preserve, as appropriate. (4) Commercial recreational watercraft servicesCommercial recreational watercraft services within the New River Gorge National Park and Preserve shall be administered by the Secretary in accordance with section 402 of the West Virginia National Interest River Conservation Act of 1987 (16 U.S.C. 460m–15 1 note; Public Law 100–534). (5) ReferencesAny reference in a law, map, regulation, document, paper, or other record of the United States to the New River Gorge National River shall be considered to be a reference to the “New River Gorge National Park” or the “New River Gorge National Preserve”, as appropriate. (d) Authorization of appropriationsThere are authorized to be appropriated such sums as are necessary to carry out this section.

16 U.S.C. § 410eeee–1 Establishment; administration, protection, and development; utilization of other authorities; boundary description, availability for public inspection

For the purpose of conserving and interpreting outstanding natural, scenic, and historic values and objects in and around the New River Gorge and preserving as a free-flowing stream an important segment of the New River in West Virginia for the benefit and enjoyment of present and future generations, the Secretary of the Interior (hereinafter referred to as the “Secretary”) shall establish and administer the New River Gorge National River.11 See Change of Name note below. The Secretary shall administer, protect, and develop the national river in accordance with the provisions of the Act of August 25, 1916 (39 Stat. 535; 16 U.S.C. 1 et seq.),22 See References in Text note below. as amended and supplemented; except that any other statutory authority available to the Secretary for the preservation and management of natural resources may be utilized to the extent he finds such authority will further the purposes of this subchapter. The boundaries of the national river shall be as generally depicted on the drawing entitled “Proposed New River Gorge National River” numbered NERI 80,034, dated May 2001, which shall be on file and available for public inspection in the offices of the National Park Service, Department of the Interior.

16 U.S.C. § 410eeee–2 Acquisition of property

(a) Authority of Secretary; manner; donation of State lands; improved and unimproved propertiesWithin the boundaries of the New River Gorge National River,11 See Change of Name note below. the Secretary may acquire lands and waters or interests therein by donation, purchase with donated or appropriated funds, transfer, or exchange. Lands owned by the State of West Virginia or a political subdivision thereof may be acquired by donation only. In addition, the Secretary may acquire by any of the foregoing methods not to exceed ten acres outside the boundaries of the national river for an administrative headquarters site, and funds appropriated for land acquisition shall be available for the acquisition of the administrative headquarters site. The authority of the Secretary to condemn in fee, improved properties as defined in subsection (c) of this section shall not be invoked as long as the owner of such improved property holds and uses it in a manner compatible with the purposes of this subchapter. The Secretary may acquire any such improved property without the consent of the owner whenever he finds that such property has undergone, since January 1, 1978, or is imminently about to undergo, changes in land use which are incompatible with the purposes of the national river. The Secretary may acquire less than fee interest in any improved or unimproved property within the boundaries of the national river. (b) Non-federally owned lands; cooperative agreements affecting properties of historical significanceOn non-federally owned lands within the national river boundaries, the Secretary is authorized to enter into cooperative agreements with organizations or individuals to mark or interpret properties of significance to the history of the Gorge area. (c) “Improved property” definedFor the purposes of this Act, the term “improved property” means (i) a detached single family dwelling, the construction of which was begun before January 1, 1977 (hereafter referred to as “dwelling”), together with so much of the land on which the dwelling is situated, the said land being in the same ownership as the dwelling, as the Secretary shall designate to be reasonably necessary for the enjoyment of the dwelling for the sole purpose of noncommercial residential use, together with any structures necessary to the dwelling which are situated on the land so designated, or (ii) property developed for agricultural uses, together with any structures accessory thereto which were so used on or before January 1, 1977, or (iii) commercial and small business properties which were so used on or before January 1, 1977, the purpose of which is determined by the Secretary to contribute to visitor use and enjoyment of the national river. In determining when and to what extent a property is to be considered an “improved property”, the Secretary shall take into consideration the manner of use of such buildings and lands prior to January 1, 1977, and shall designate such lands as are reasonably necessary for the continued enjoyment of the property in the same manner and to the same extent as existed prior to such date. (d) Owner’s reservation of right of use and occupancy for fixed term of years or for life; election by owner; fair market value; termination; notificationThe owner of an improved property, as defined in this subchapter, on the date of its acquisition, as a condition of such acquisition, may retain for himself, his heirs and assigns, a right of use and occupancy of the improved property for noncommercial residential, or agricultural purposes, or the continuation of existing commercial operations, as the case may be, for a definite term of not more than twenty-five years, or, in lieu thereof, for a term ending at the death of the owner or the death of his spouse, whichever is later. The owner shall elect the term to be reserved. Unless the property is wholly or partially donated, the Secretary shall pay to the owner the fair market value of the property on the date of its acquisition, less the fair market value of the property on that date of the right retained by the owner. A right retained by the owner pursuant to this section shall be subject to termination by the Secretary upon his determination that it is being exercised in a manner inconsistent with the purposes of this subchapter, and it shall terminate by operation of law upon notification by the Secretary to the holder of the right of such determination and tendering to him the amount equal to the fair market value of that portion which remains unexpired.

16 U.S.C. § 410eeee–3 Lands and areas plan; submission to Congressional committees

Within two years from November 10, 1978, the Secretary shall submit, in writing, to the House Committee on Interior and Insular Affairs, the Senate Committee on Energy and Natural Resources and the Committees on Appropriations of the United States Congress, a detailed plan which shall indicate— (i) the lands and areas which he deems essential to the protection and public enjoyment of the natural, scenic, and historic values and objects of this national river; (ii) the lands which he has previously acquired by purchase, donation, exchange, or transfer for the purpose of this national river; (iii) the annual acquisition program (including the level of funding) which he recommends for the ensuing four fiscal years; and (iv) the feasibility and suitability of including within the boundaries of the national river, the section of the New River from Fayetteville to Gauley Bridge, and reasons therefor.

16 U.S.C. § 410eeee–4 Zoning laws and ordinances; establishment; assistance; restrictions; variances

The Secretary shall on his own initiative, or at the request of any local government having jurisdiction over land located in or adjacent to the Gorge area, assist and consult with the appropriate officials and employees of such local government in establishing zoning laws or ordinances which will assist in achieving the purposes of this subchapter. In providing assistance pursuant to this section, the Secretary shall endeavor to obtain provisions in such zoning laws or ordinances which— (1) have the effect of restricting incompatible commercial and industrial use of all real property in or adjacent to the Gorge area; (2) aid in preserving the character of the Gorge area by appropriate restrictions on the use of real property in the vicinity, including, but not limited to, restrictions upon building and construction of all types; signs and billboards; the burning of cover; cutting of timber; removal of topsoil, sand, or gravel; dumping, storage, or piling of refuse; or any other use which would detract from the esthetic character of the Gorge area; and (3) have the effect of providing that the Secretary shall receive advance notice of any hearing for the purpose of granting a variance and any variance granted under, and of any exception made to, the application of such law or ordinance.

16 U.S.C. § 410eeee–5 Mineral lands

(a) Mining; prohibition and limitationNotwithstanding any other provision of law, no surface mining of any kind shall be permitted on federally owned lands within the boundary of the national river where the subsurface estate is not federally owned. Underground mining on such lands may be permitted by the Secretary only if—(1) the mining operation will have no significant adverse impact on the public use and enjoyment of the national river; (2) the mining operation will disturb the minimum amount of surface necessary to extract the mineral; and (3) the surface is not significantly disturbed, unless there is no technologically feasible alternative. (b) Timber harvestingThe harvesting of timber on federally owned lands within the national river boundary is prohibited, except insofar as it is necessary for the Secretary to remove trees for river access, historic sites, primitive campgrounds, scenic vistas, or as may be necessary from time to time for reasons of public health and safety. (c) Civil action; jurisdiction; recoveryThe owner of a mineral estate subject to this section who believes he has suffered a loss by operation of this section, may bring an action only in a United States district court to recover just compensation, which shall be awarded if the court finds that such loss constitutes a taking of property compensable under the Constitution.

16 U.S.C. § 410eeee–6 Hunting and fishing zones; designation; rules and regulations, consultation

The Secretary shall permit hunting and fishing on lands and waters under his jurisdiction within the boundaries of the New River Gorge National River 11 See Change of Name note below. in accordance with applicable Federal and State laws, and he may designate zones where, and establish periods when, no hunting or fishing shall be permitted for reasons of public safety, administration, fish or wildlife management, or public use and enjoyment. Except in emergencies, any rules and regulations of the Secretary pursuant to this section shall be put into effect only after consultation with the appropriate State agency responsible for hunting and fishing activities. The Secretary shall permit the State of West Virginia to undertake fish stocking activities carried out by the State, in consultation with the Secretary, on waters within the boundaries of the national river. Nothing in this Act shall be construed as affecting the jurisdiction of the State of West Virginia with respect to fish and wildlife.

16 U.S.C. § 410eeee–7 Project work prohibition; advisement to Secretary; report to Congress

The Federal Energy Regulatory Commission 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 the New River Gorge National River,11 See Change of Name note below. 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. Nothing contained in the foregoing sentence, however, shall preclude licensing of, or assistance to, developments below or above the New River Gorge National River 1 or on any stream tributary thereto which will not invade the area or diminish the scenic, recreation, and fish and wildlife values present in the area on November 10, 1978. No department or agency of the United States shall recommend authorization 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, or request appropriations to begin construction on any such project whether heretofore or hereafter authorized, without advising the Secretary in writing of its intention to do so at least sixty days in advance, and without specifically reporting to the Congress in writing at the time it makes its recommendation or request in what respect construction of such project would be in conflict with the purposes of this section and would effect 22 So in original. Probably should be “affect”. the national river and the values to be protected by it under this section.

16 U.S.C. § 410eeee–8 General management plan; submission to Congressional committees

Within three years from November 10, 1978, the Secretary shall develop and transmit to the Senate Committee on Energy and Natural Resources and the House Committee on Interior and Insular Affairs, a general management plan for the protection and development of the national river consistent with the purposes of this subchapter, indicating— (1) measures for the preservation of the area’s resources; (2) indications of types and general intensities of development (including visitor circulation and transportation patterns, systems and modes) associated with public enjoyment and use of the area, including general locations, timing of implementation, and anticipated costs; (3) identification of and implementation commitments for visitor carrying capacities for all areas of the unit; and (4) indications of potential modifications to the external boundaries of the unit, and the reasons therefor.

16 U.S.C. § 410eeee–9 Cooperation

The Secretary of the Army shall cooperate with the Secretary of the Interior concerning the water requirements of the national river. The Secretary of the Army shall provide for release of water from the Bluestone Lake project consistent with that project’s purposes and activities in sufficient quantity and in such manner to facilitate protection of biological resources and recreational use of the national river.

16 U.S.C. § 410eeee–10 Class I or class II redesignation for clean air purposes

For the purposes of part C of the Clean Air Act [42 U.S.C. 7470 et seq.], the State may redesignate the national river only as class I or class II.

16 U.S.C. § 410eeee–11 Authorization of appropriations

There are hereby authorized to be appropriated such sums as may be necessary for the purposes of this subchapter, but not to exceed $20,000,000 for the acquisition of lands and interests in lands, and not to exceed $3,000,000 for development.

16 U.S.C. § 410eeee–12 Cooperative agreements with State

In administering the national river, the Secretary is authorized to enter into cooperative agreements with the State of West Virginia, or any political subdivision thereof, for the rendering, on a reimbursable or non-reimbursable basis, of rescue, fire fighting, and law enforcement services and cooperative assistance by nearby law enforcement and fire preventive agencies.

16 U.S.C. § 410eeee–13 Improvement of access at Cunard

(a) Development and improvementThe Secretary shall expeditiously acquire such lands, and undertake such developments and improvements, as may be necessary to provide for commercial and noncommercial access to the river near Cunard. No restriction shall be imposed on such access based on the time of day, except to the extent required to protect public health and safety. (b) Interim measuresPending completion of the developments and improvements referred to in subsection (a), the Secretary shall permit the motorized towing of whitewater rafts in the section of the national river between Thurmond and Cunard when the volume of flow in the river is less than three thousand cubic feet per second.

16 U.S.C. § 410eeee–14 Flow management

(a) FindingsThe Congress finds that adjustments of flows from Bluestone Lake project during periods of low flow are necessary to respond to the congressional mandate contained in section 410eeee–9 of this title and that such adjustments could enhance the quality of the recreational experience in the segments of the river below the lake during those periods as well as protect the biological resources of the river. (b) Report to Congress requiredThe Secretary of the Army, in conjunction with the Secretary of the Interior, shall conduct a study and prepare a report under this section. The report shall be submitted to the Committee on Energy and Natural Resources of the United States Senate and the Committee on Interior and Insular Affairs of the United States House of Representatives not later than December 31, 1989. Before submission of the report to these Committees, a draft of the report shall be made available for public comment. The final report shall include the comments submitted by the Secretary of the Interior and the public, together with the response of the Secretary of the Army to those comments. (c) Contents of studyThe study under this section shall examine the feasibility of adjusting the timing of daily releases from Bluestone Lake project during periods when flows from the lake are less than three thousand cubic feet per second. The purpose of such adjustment shall be to improve recreation (including, but not limited to, fishing and whitewater recreation) in the New River Gorge National River.11 See Change of Name note below. Any such adjustments in the timing of flows which are proposed in such report shall be consistent with other project purposes and shall not have significant adverse effects on fishing or on any other form of recreation in Bluestone Lake or in any segment of the river below Bluestone Lake. The study shall assess the effects of such flow adjustments on the quality of recreation on the river in the segments of the river between Hinton and Thurmond and between Thurmond and the downstream boundary of the New River Gorge National River,1 taking into account the levels of recreational visitation in each of such segments. (d) Test proceduresAs part of the study under this section, the Secretary of the Army shall conduct test releases from Bluestone Lake project during twenty-four-hour periods during the summer of 1989 when flows are less than three thousand cubic feet per second from the project. All such adjustments shall conform to the criteria specified in subsection (c). The tests shall provide adjustments in the timing of daily flows from Bluestone Lake project which permit flows higher than the twenty-four-hour average to reach downstream recreational segments of the river during morning and afternoon hours. The tests shall develop specific data on the effects of flow adjustments on the speed of the current and on water surface levels in those segments. No test shall be conducted when flows from the lake are less than one thousand seven hundred cubic feet per second and no test shall reduce flows below that level.

16 U.S.C. § 410eeee–15 Glade Creek visitor facility

In order to provide for public use and enjoyment of the scenic and natural resources of the New River Gorge National River 11 See Change of Name note below. and in order to provide public information to visitors with respect to the national river and associated State parklands, the Secretary is authorized and directed to construct a scenic overlook and visitor information facility at a suitable location accessible from Interstate 64 in the vicinity of Glade Creek within the boundary of the national river. There is authorized to be appropriated such sums as may be necessary to carry out construction (including all related planning and design) of the scenic overlook and visitor information facility.

16 U.S.C. § 410eeee–16 New River Gorge and Gauley River Visitor Center

The Secretary of the Interior is authorized to construct a visitor center and such other related facilities as may be deemed necessary to facilitate visitor understanding and enjoyment of the New River Gorge National River 11 See Change of Name note below. and the Gauley River National Recreation Area in the vicinity of the confluence of the New and Gauley Rivers. Such center and related facilities are authorized to be constructed at a site outside of the boundary of the New River Gorge National River 1 or Gauley River National Recreation Area unless a suitable site is available within the boundaries of either unit.

16 U.S.C. § 410eeee–17 Applicable provisions of other law

(a) Cooperative agreementsThe provisions of section 460ww–1(e)(1) of this title shall apply to the New River Gorge National River 11 See Change of Name note below. in the same manner and to the same extent as such provisions apply to the Gauley River National Recreation Area. (b) Remnant landsThe provisions of the second sentence of section 460ww–2(a) of this title shall apply to tracts of land partially within the boundaries of the New River Gorge National River 1 in the same manner and to the same extent as such provisions apply to tracts of land only partially within the Gauley River National Recreation Area.