[Senate Report 106-266]
[From the U.S. Government Publishing Office]
Calendar No. 496
106th Congress Report
SENATE
2d Session 106-266
======================================================================
WHITE CLAY CREEK WILD AND SCENIC RIVERS SYSTEM ACT
_______
April 12, 2000.--Ordered to be printed
_______
Mr. Murkowski, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 1849]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 1849) to designate segments and
tributaries of White Clay Creek, Delaware and Pennsylvania, as
a component of the National Wild and Scenic Rivers System,
having considered the same, reports favorably thereon with an
amendment and recommends that the bill, as amended, do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``White Clay Creek Wild and Scenic
Rivers System Act.''
SEC. 2. FINDINGS.
Congress finds that--
(1) Public Law 102-215 (105 Stat. 1664) directed the
Secretary of the Interior, in cooperation and consultation with
appropriate State and local governments and affected
landowners, to conduct a study of the eligibility and
suitability of White Clay Creek, Delaware and Pennsylvania, and
the tributaries of the creek for inclusion in the National Wild
and Scenic Rivers System;
(2) as a part of the study described in paragraph (1), the
White Clay Creek Study Wild and Scenic Study Task Force and the
National Park Service prepared a watershed management plan for
the study area entitled ``White Clay Creek and Its Tributaries
Watershed Management Plan'', dated May 1998, that establishes
goals and actions to ensure the long-term protection of the
outstanding values of, and compatible management of land and
water resources associated with, the watershed; and
(3) after completion of the study described in paragraph (1),
Chester County, Pennsylvania, New Castle County, Delaware,
Newark, Delaware, and 12 Pennsylvania municipalities located
within the watershed boundaries passed resolutions that--
(A) expressed support for the White Clay Creek
Watershed Management Plan;
(B) expressed agreement to take action to implement
the goals of the Plan; and
(C) endorsed the designation of the White Clay Creek
and the tributaries of the creek for inclusion in the
National Wild and Scenic Rivers System.
SEC. 3. DESIGNATION OF WHITE CLAY CREEK.
Section 3(a) of the Wild and Scenic Rivers Act (16 U.S.C. 1274(a))
is amended by adding at the end the following:
``(161) White clay creek, delaware and pennsylvania.--
``(A) Segments.--The 191 miles of river segments of
White Clay Creek (including tributaries of the Creek
and all second order tributaries of the designated
segments) in the States of Delaware and Pennsylvania
(referred to in this paragraph as the `Creek'), as
depicted on the recommended designation and
classification maps, as follows:
``(i) 30.8 miles of the east branch,
including Trout Run, beginning at the
headwaters within West Marlborough township
downstream to a point that is 500 feet north of
the Borough of Avondale wastewater treatment
facility, as a recreational river.
``(ii) 15.0 miles of the east branch
beginning at the southern boundary line of the
Borough of Avondale to a point where the East
Branch enters New Garden Township at the
Franklin Township boundary line, including
Walnut Run and Broad Run outside the boundaries
of the White Clay Creek Preserve, as a
recreational river.
``(iii) 4.0 miles of the east branch that
flow through the boundaries of the White Clay
Creek Preserve, Pennsylvania, beginning at the
northern boundary line of London Britain
township and downstream to the confluence of
the middle and east branches, as a scenic
river.
``(iv) 20.9 miles of the middle branch,
beginning at the headwaters within Londonderry
township downstream to the boundary of the
White Clay Creek Preserve in London Britain
township, as a recreational river.
``(v) 2.1 miles of the west branch that flow
within the boundaries of the White Clay Creek
Preserve in London Britain township, as a
scenic river.
``(vi) 17.2 miles of the west branch,
beginning at the headwaters within Penn
township downstream to the confluence with the
middle branch, as a recreational river.
``(vii) 12.7 miles of the main stem,
excluding Lamborn Run, that flow through the
boundaries of the White Clay Creek Preserve,
Pennsylvania and Delaware, and White Clay Creek
State Park, Delaware, beginning at the
confluence of the east and middle branches in
London Britain township, Pennsylvania,
downstream to the northern boundary line of the
city of Newark, Delaware, as a scenic river.
``(viii) 27.5 miles of the main stem
(including all second order tributaries outside
the boundaries of the White Clay Creek Preserve
and White Clay Creek State Park), beginning at
the confluence of the east and middle branches
in London Britain township, Pennsylvania,
downstream to the confluence of the White Clay
Creek with the Christina River, as a
recreational river.
``(ix) 1.3 miles of Middle Run outside the
boundaries of the Middle Run Natural Area, as a
recreational river.
``(x) 5.2 miles of Middle Run that flow
within the boundaries of the Middle Run Natural
Area, as a scenic river.
``(xi) 15.6 miles of Pike Creek, as a
recreational river.
``(xii) 38.7 miles of Mill Creek, as a
recreational river.
``(B) Boundaries.--
``(i) In general.--Except as provided in
clause (ii), in lieu of the boundaries provided
for in subsection (b), the boundaries of the
segments shall be the greater of--
``(I) the 500-year floodplain; or
``(II) 250 feet as measured from the
ordinary high water mark on both sides
of the segment.
``(ii) Exceptions.--The boundary limitations
described in clause (i) are inapplicable to--
``(I) the areas described in section
4(a) of the White Clay Creek Wild and
Scenic Rivers Act; and
``(II) the properties, as generally
depicted on the map entitled ``White
Clay Creek Wild and Scenic River Study
Area Recommended Designated Area'',
dated June 1999, on which are located
the surface water intakes and water
treatment and wastewater treatment
facilities of--
``(aa) the City of Newark,
Delaware;
``(bb) the corporation known
as United Water Delaware; and
``(cc) the Borough of West
Grove, Pennsylvania.
``(C) Administration.--
``(i) In general.--The segments designated by
subparagraph (A) shall be administered by the
Secretary of the Interior, in cooperation with
the White Clay Creek Watershed Management
Committee as provided for in the plan prepared
by the White Clay Creek Wild and Scenic Study
Task Force and the National Park Service,
entitled `White Clay and Its Tributaries
Watershed Management Plan' and dated May
1998.''
SEC. 4. SUBSEQUENT DESIGNATIONS.
(a) In General.--Churchman's Marsh, Lamborn Run, and the properties
on which the intake structures and pipelines for the proposed
Thompson's Station Reservoir may be located shall be considered
suitable for designation as components of the National Wild and Scenic
Rivers System only at such time as those areas are removed from
consideration as locations forthe reservoir under the comprehensive
plan of the Delaware River Basin Commission.
(b) Assistance for Subsequent Designations.--The Secretary of the
Interior (hereinafter referred to as the ``Secretary'') shall offer
assistance to the State of Delaware and New Castle County, Delaware, if
an area described in subsection (a) is designated a component of the
National Wild and Scenic Rivers System.
SEC. 5 MANAGEMENT.
(a) In General.--In order to provide for the long-term protection,
preservation, and enhancement of White Clay Creek and its tributaries,
the Secretary shall offer to enter into cooperative agreements pursuant
to section 10(e) and section 11(b)(1) of the Wild and Scenic Rivers Act
(16 U.S.C. 1281(e) and 16 U.S.C. 1282(b)(1)) with the White Clay Creek
Watershed Management Committee as provided for in the plan entitled
``White Clay Creek and its Tributaries Watershed Management Plan'' and
dated May, 1998 (hereinafter referred to as the ``management plan'').
(b) Federal Role.--(1) The Director of the National Park Service
(or a designee) shall represent the Secretary in the implementation of
the management plan and this paragraph (including the review, required
under section 7(a) of the Wild and Scenic Rivers Act (16 U.S.C.
1278(a)), of proposed Federally-assisted water resources projects that
could have a direct and adverse effect on the values for which the
segments were designated and authorized).
(2) To assist in the implementation of the management plan and to
carry out this Act, the Secretary may provide technical assistance,
staff support, and funding at a cost to the Federal Government in an
amount, in the aggregate, of not to exceed $150,000 for each fiscal
year.
(c) Cooperative Agreements.--Any cooperative agreement entered into
under section 10(e) of the Wild and Scenic Rivers Act (16 U.S.C.
1281(e)) relating to any of the segments designated by section 3--
(1) shall be consistent with the management plan; and
(2) may include provisions for financial or other assistance
from the United States to facilitate the long-term protection,
conservation, and enhancement of the segments.
(d) Comprehensive Management Plan.--The management plan shall be
deemed to satisfy the requirements for a comprehensive management plan
under section 3(d) of the Wild and Scenic Rivers Act (16 U.S.C.
1274(d)).
(e) State Requirements.--State and local zoning laws and
ordinances, as in effect on the date of enactment of this Act, shall be
considered to satisfy the standards and requirements under section 6(c)
of the Wild and Scenic Rivers Act (16 U.S.C. 1277(c)).
(f) National Park System.--Notwithstanding section 10(c) of the
Wild and Scenic Rivers Act (16 U.S.C. 1281(c)), any portion of a
segment designated by section 3 that is not in the National Park System
as of the date of enactment of this Act shall not--
(1) be considered a part of the National Park System;
(2) be managed by the National Park Service; or
(3) be subject to laws (including regulations) that govern
the National Park System.
(g) No Land Acquisition.--The Federal Government shall not acquire,
by any means, any right or title in or to land, any easement, or any
other interest for the purpose of carrying out this Act.
Purpose of the Measure
The purpose of S. 1849 is to designate segments and
tributaries of White Clay Creek in the States of Delaware and
Pennsylvania as a component of the National Wild and Scenic
Rivers System.
Background and Need
Public Law 102-215 amended the Wild and Scenic Rivers Act
of 1968 to require a study of the White Clay Creek, including
its headwaters, main branches, and tributaries to determine its
eligibility and suitability for inclusion in the National Wild
and Scenic Rivers System. Further, the legislation also
directed the Secretary to develop a management plan for the
area prior to designation of the river.
The study of the White Clay Creek culminated with the
release of the National Park Service study report in September
1999. The study found that a total of 191 miles of the White
Clay Creek were eligible and suitable for designation as a
component of the National Wild and Scenic River System. All
fifteen of the affected municipalities and counties have passed
resolutions supporting the White Clay Creek Watershed
Management Plan and the proposed designation.
Legislative History
S. 1849 was introduced by Senators Biden and Roth on
November 3, 1999. The Subcommittee on National Parks, Historic
Preservation and Recreation held a hearing on S. 1849 on March
8, 2000.
At its business meeting on April 5, 2000, the Committee on
Energy and Natural Resources ordered S. 1849 favorably
reported, as amended.
Committee Recommendation
The Senate Committee on Energy and Natural Resources, in
open business session on April 5, 2000, by a unanimous voice
vote of a quorum present, recommends that the Senate pass S.
1849, if amended as described herein.
Committee Amendment
During its consideration of S. 1849, the Committee adopted
an amendment in the nature of a substitute. As introduced, S.
1849 incorporated the specific management prescriptions for
White Clay Creek and its tributaries into the Wild and Scenic
Rivers Act; the amendment does not alter these provisions, but
enacts them free-standing, rather than as an amendment to the
Wild and Scenic Rivers Act. The Wild and Scenic Rivers Act is
amended by adding the segments and tributaries of White Clay
Creek. The amendment also clarifies the authority of the
Secretary of the Interior to enter into cooperative agreements
with the White Clay Creek Watershed Management Committee, as
well as making several technical corrections.
Section-by-Section Analysis
Section 1 designates the bill's short title.
Section 2 contains congressional findings.
Section 3 amends section 3(a) of the Wild and Scenic Rivers
Act (U.S.C. 1274(a)) by adding paragraph (161) to designate
White Clay Creek, in Delaware and Pennsylvania. The designation
includes 12 segments totaling 191 miles of White Clay Creek
(including tributaries of the creek and all second order
tributaries of the designated segments). Eight of the segments,
totaling 167 miles are designated as a recreational river, and
the remaining 4 segments totaling 24 miles are designated as a
scenic river. In addition, this section also defines the
boundaries of the segments, and directs that the river segments
shall be administered by the Secretary of the Interior in
cooperation with the White Clay Creek Watershed Management
Committee. It further stipulates that the ``White Clay Creek
and its Tributaries Watershed Management Plan'' dated May 1998
shall be considered to satisfy the requirements for a
comprehensivemanagement plan.
Section 4(a) directs that Churchman's Marsh, Lamborn Run
and the other properties on which intake structures and
pipelines for a proposed reservoir will be considered suitable
for Wild and Scenic River designation only at such time as
those areas are removed from consideration as locations for the
reservoir.
Subsection (b) provides that the Secretary of the Interior
shall offer assistance to the State of Delaware and New Castle
County, Delaware, if an area described in subsection (a) is
designated as a component of the National Wild and Scenic
Rivers System.
Section 5 describes the management of the river segments.
Subsection (a) directs the Secretary of the Interior to
offer to enter into cooperative agreements with the White Clay
Creek Watershed Management Committee in order to provide for
the long-term protection, preservation, and enhancement of the
creek and its tributaries.
Subsection (b) provides that the Director of the National
Park Service (or a designee) shall represent the Secretary of
the Interior, and may assist in the implementation of the
management plan by providing technical assistance, staff
support, and funding not to exceed $150,000 for each fiscal
year.
Subsection (c) directs that any cooperative agreement
entered into under section 10(e) of the Wild and Scenic Rivers
Act shall be consistent with the management plan and may
include provisions for financial assistance from the United
States.
Subsection (d) provides that the plan entitled ``White Clay
Creek and its Tributaries Watershed Management Plan'' and dated
May 1998, is deemed to satisfy the requirements for a
comprehensive management plan under section 3(d) of the Wild
and Scenic Rivers Act (16 U.S.C. 1274(d)).
Subsection (e) provides that State and local zoning
ordinances in effect on the date of enactment of this Act shall
be considered to satisfy the standards and requirements under
section 6(c) of the Wild and Scenic Rivers Act (16 U.S.C.
1277(c)).
Subsection (f) provides that none of the river segments
designated under section 3 shall be considered to be part of
the National Park System, be managed by the National Park
Service, or be subject to the laws and regulations that govern
the National Park System.
Subsection (g) directs that there shall be no Federal land
acquisition for the purposes of carrying out this Act.
Cost and Budgetary Considerations
The Congressional Budget Office estimate of the costs of
this measure has been requested but was not received at the
time the report was filed. When the report is available, the
Chairman will request it to be printed in the Congressional
Record for the advice of the Senate.
Regulatory Impact Evaluation
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact which would be incurred in
carrying out S. 1849. The bill is not a regulatory measure in
the sense of imposing Government established standards or
significant economic responsibilities on private individuals
and businesses.
No personal information would be collected in administering
the program. Therefore, there would be no impact on personal
privacy.
Little, if any, additional paperwork would result from the
enactment of S. 1849.
Executive Communications
The legislative report received by the Committee from the
Department of the Interior setting forth Executive agency
recommendation relating to the S. 1849 is set forth below:
U.S. Department of the Interior,
Office of the Secretary,
Washington, DC, March 20, 2000.
Hon. Frank Murkowski,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: This letter presents the Department's
views on S. 1849, a bill that amends the Wild and Scenic Rivers
Act by designating segments and tributaries of the White Clay
Creek in Delaware and Pennsylvania as a component of the
National Wild and Scenic Rivers System.
The Department supports the intent of the bill, but not as
currently drafted. In particular, given existing land ownership
patterns, the Department supports designation of the White Clay
Creek as a ``private lands'' river managed by a non-federal
entity rather than by a federal agency.
S. 1849 provides that the administration of the designated
river segments by the Secretary of the Interior is to be
consistent with the cooperatively developed White Clay Creek
Watershed Management Plan and to be undertaken in cooperation
with federal, state, county and municipal governments. The bill
also identifies additional segments that would be suitable for
designation by the Secretary only at such time as those
segments are removed from consideration as locations for
reservoirs under the comprehensive plan of the Delaware River
Basin Commission.
In December of 1991, Congress directed the National Park
Service to undertake a study of the headwaters of the White
Clay Creek in Pennsylvania to its confluence with the Christina
River in Delaware. The study was to be done in cooperation and
consultation with various federal, state, regional, and local
governments and affected landowners. In addition, a river
management plan was to be prepared that would provide
recommendations as to the protection and management of the
White Clay Creek and its tributaries.
In 1998, a watershed management plan was prepared that
contained six goals for management of the White Clay Creek and
its tributaries. The plan was done cooperatively and calls for
a management framework for the White Clay Creek and its
tributaries that relies heavily on local land use decisions and
zoning as protection measures for the river. In 1999, the NPS
issued the ``White Clay Creek and Its Tributaries National Wild
and Scenic River Study Draft Report.'' The majority of the
river segments identified in the study report qualified for
designation as a component of the Wild and Scenic River System
and are reflected in S. 1849.
Because of land ownership patterns along the White Clay
Creek and its tributaries, the NPS categorizes the White Clay
Creek as a ``private lands'' river. There were five principles
that involvement and consensus building in determining whether
the river segments were suitable for designation and how they
should be managed; (2) the river management plan would be
prepared during the study rather than after designation and
would be a collaborative effort of NPS, the study task force
and state and local governments; (3) designation of river
segments only would occur if strong local support for
designation existed and was expressed through passage of
support resolutions by the affected communities; (4) existing
land use patterns would be maintained and local land use
control and home rule would not be usurped; and (5) the laws
and regulations that affect the White Clay Creek and its
tributaries are complex involving two states, thirteen
municipalities, two counties, the Delaware River Basin
Commission, and several federal agencies.
The preferred alternative for designation and management
recommends designation of 191 river miles of the White Clay
Creek and its tributaries as a unit of the National Wild and
Scenic Rivers System. Protection of the river's outstanding
resources would be based upon private, state and local
conservation measures and would not rely on federal land
acquisition or direct federal management.
The Department believes that the management prescriptions
that are specific to the White Clay Creek should not be enacted
as an amendment to the Wild and Scenic Rivers Act, but should
instead be included in free-standing legislation. When a river
that is designated as part of the Wild and Scenic rivers System
is to be managed differently than the management outlined in
the Wild and Scenic Rivers Act, those particular management
prescriptions have consistently been adopted as free-standing
provisions of the designation legislation. This drafting
technique allows the Wild and Scenic Rivers Act to remain
focused on designations and not the exceptions to the law.
Separate legislation is effective in ensuring that the river is
managed under an exception to the usual management
prescriptions. Keeping the special management provisions
separate also prevents confusion between generally appropriate
management requirements that are contained in the Wild and
Scenic Rivers Act and those that are provided in the
independent legislation.
The amendment to the Wild and Scenic Rivers Act should
provide for the designation of the White Clay Creek and its
tributaries, as primarily found in the language on pages three
through six of S. 1849. The bill also should provide a clear
statement that the White Clay Creek will not be considered a
unit of the National Park System or administered according to
the laws and regulations of the National Park System. The
language and the management prescriptions that are specific to
the White Clay Creek should be embodied in separate
legislation. The Department and the National Park Service would
be happy to work with the committee to address our concerns.
The Office of Management and Budget advises that there is
no objection to the presentation of this report from the
standpoint of the Administration's program.
Sincerely,
Donald Barry,
Assistant Secretary for Fish
and Wildlife and Parks.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, S. 1849, as ordered reported, are shown as follows
(existing law proposed to be omitted is enclosed in black
brackets, new matter is printed in italic, existing law in
which no change is proposed is shown in roman):
Section 3 of the Wild and Scenic Rivers Act
Sec. 3. (a) The following rivers and the land adjacent
thereto are hereby designated as components of the national
wild and scenic rivers system:
(1) * * *
* * * * * * *
(161) White Clay Creek, Delaware and Pennsylvania.--
(A) Segments.--The 191 miles of river
segments of White Clay Creek (including
tributaries of the Creek and all second order
tributaries of the designated segments) in the
States of Delaware and Pennsylvania (referred
to in this paragraph as the ``Creek''), as
depicted on the recommended designation and
classification maps, as follows:
(i) 30.8 miles of the east branch,
including Trout Run, beginning at the
headwaters within West Marlborough
township downstream to a point that is
500 feet north of the Borough of
Avondale wastewater treatment facility,
as a recreational river.
(ii) 15.0 miles of the east branch
beginning at the southern boundary line
of the Borough of Avondale to a point
where the East Branch enters New Garden
Township at the Franklin Township
boundary line, including Walnut Run and
Broad Run outside the boundaries of the
White Creek Preserve, as a recreational
river.
(iii) 4.0 miles of the east branch
that flow through the boundaries of the
White Creek Preserve, Pennsylvania,
beginning at the northern boundary line
of London Britain township and
downstream to the confluence of the
middle and east branches, as a scenic
river.
(iv) 20.9 miles of the middle branch,
beginning at the headwaters within
Londonberry township downstream to the
boundary of the White Clay Creek
Preserve in London Britain township, as
a recreational river.
(v) 2.1 miles of the west branch that
flow within the boundaries of the White
Clay Creek Preserve in London Britain
township, as a scenic river.
(vi) 17.2 miles of the west branch,
beginning at the headwaters within Penn
township downstream to the confluence
with the middle branch, as a
recreational river.
(vii) 12.7 miles of the main stem,
excluding Lamborn Run, that flow
through the boundaries of the White
Clay Creek Preserve, Pennsylvania and
Delaware, and White Clay Creek State
Park, Delaware, beginning at the
confluence of the east and middle
branches in London Britain township,
Pennsylvania, downstream to the
northern boundary line of the city of
Newark, Delaware, as a scenic river.
(viii) 27.5 miles of the main stem
(including all second order tributaries
outside the boundaries of the White
Clay Creek Preserve and White Clay
Creek Preserve and White Clay Creek
State Park), beginning at the
confluence of the east and middle
branches in London Britain township,
Pennsylvania, downstream to the
confluence of the White Clay Creek with
the Christina River, as a recreational
river.
(ix) 1.3 miles of Middle Run outside
the boundaries of the Middle Run
Natural Area, as a recreational river.
(x) 5.2 miles of Middle Run that flow
within the boundaries of the Middle Run
Natural Area, as a scenic river.
(xi) 15.6 miles of Pike Creek, as a
recreational river.
(xii) 38.7 miles of Mill Creek, as a
recreational river.
(B) Boundaries.--
(i) In general.--Except as provided
in clause (ii), in lieu of the
boundaries of the segments shall be the
greater of--
(I) the 500-year floodplain;
or
(II) 250 feet as measured
from the ordinary high water
mark on both sides of the
segment.
(ii) Exceptions.--The boundary
limitations described in clause (i) are
applicable to--
(I) the areas described in
section 4(a) of the White Clay
Creek and Scenic Rivers Act;
and
(II) the properties, as
generally depicted on the map
entitled ``White Clay Creek
Wild and Scenic River Study
Area Recommended Designated
Area'', dated June 1999, on
which are located the surface
water intakes and water
treatment and wastewater
treatment facilities of--
(aa) the City of
Newark, Delaware;
(bb) the corporation
known as United Water
Delaware; and
(cc) the Borough of
West Grove,
Pennsylvania.
(C) Administration.--
(i) In general.--The segments
designated by subparagraph (A) shall be
administered by the Secretary of the
Interior, in cooperation with the White
Clay Creek Watershed Management
Committee as provided for in the plan
prepared by the White Clay Creek Wild
and Scenic Study Task Force and the
National Park Service, entitled ``White
Clay and Its Tributaries Watershed
Management Plan'' and dated May 1998.