Lake Roosevelt National Recreation Area, Personal Watercraft Use

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: June 25, 2004 (Volume 69, Number 122)]
[Rules and Regulations]
[Page 35519-35526]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25jn04-9]

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DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 7
RIN 1024-AD01

AGENCY: National Park Service, Interior.
ACTION: Final rule.

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SUMMARY: This rule designates areas where personal watercraft (PWC) may
be used in Lake Roosevelt National Recreation Area, Washington. This
rule implements the provisions of the National Park Service (NPS)
general regulations authorizing park areas to allow the use of PWC by
promulgating a special regulation. The NPS Management Policies 2001
require individual parks to determine whether PWC use is appropriate
for a specific park area based on an evaluation of that area's enabling
legislation, resources and values, other visitor uses, and overall
management objectives.

EFFECTIVE DATE: This rule is effective June 25, 2004.

ADDRESSES: Mail inquiries to Superintendent, Lake Roosevelt National
Recreation Area, 1008 Crest Drive, Coulee Dam, WA 99116 or e-mail
laro@den.nps.gov.

FOR FURTHER INFORMATION CONTACT: Kym Hall, Special Assistant, National
Park Service, 1849 C Street, NW., Room 3145, Washington, DC 20240.
Phone: (202) 208-4206. e-mail: Kym_Hall@nps.gov.

SUPPLEMENTARY INFORMATION:

Background

Personal Watercraft Regulation

On March 21, 2000, the National Park Service published a regulation
(36 CFR 3.24) on the management of personal watercraft (PWC) use within
all units of the national park system (65 FR 15077). This regulation
prohibits PWC use in all national park units unless the NPS determines
that this type of water-based recreational activity is appropriate for
the specific park unit based on the legislation establishing that park,
the park's resources and values, other visitor uses of the area, and
overall management objectives. The regulation banned PWC use in all
park units effective April 20, 2000. The regulation established a 2-
year grace period for 21 park units with existing PWC use to consider
whether PWC use should be allowed.

Description of Lake Roosevelt National Recreation Area

Lake Roosevelt National Recreation Area was established in eastern
Washington State in 1946 following the Secretary of the Interior's
approval of a Tri-Party Agreement among the National Park Service, the
Bureau of Reclamation, and the Bureau of Indian Affairs. The reservoir
and related lands were administered as the recreation area under this
agreement until 1974 when Interior Secretary Rogers C.B. Morton
directed that the agreement for the management of the lake be expanded
to include the Confederated Tribes of the Colville Reservation and the
Spokane Tribe of Indians. Secretary Morton's directive was prompted by
the Interior Solicitor's opinion that the tribes have exclusive rights
to hunting, boating, and fishing within those areas of the reservoir
that are within the boundaries of the two Indian reservations. An
accord was reached on April 5, 1990, when the Secretary of the Interior
approved the Lake Roosevelt Cooperative Management Agreement. The
agreement confirmed and established management authority of the two
Indian tribes over the portions of Lake Roosevelt and related lands
within the boundaries of their respective reservations that were
previously administered as part of the national recreation area. In
1997, the name of the park was changed from Coulee Dam National
Recreation Area to Lake Roosevelt National Recreation Area.
In the Lake Roosevelt Cooperative Management Agreement, Lake
Roosevelt National Recreation Area is defined as the waters and lands
managed by the National Park Service. Lake Roosevelt National
Recreation Area consists of 312 miles of shoreline along the Columbia
River. The National Park Service administers 47,438 acres of the
81,389-acre water surface (at full pool), and 12,936 acres of adjacent
land. The lands of Lake Roosevelt National Recreation Area consist
primarily of a narrow band of shore above the maximum high water mark
(1,290 feet), which was originally

[[Page 35520]]

purchased by the Bureau of Reclamation for construction of the
reservoir. The national recreation area also includes shoreline along
about 29 miles of the Spokane River Arm of the lake and about 7 miles
along the Kettle River Arm. Most of the remainder of the shoreline and
surface area of Lake Roosevelt lies within the reservation boundaries
of the Spokane Tribe and the Colville Confederated Tribes and is not
part of the national recreation area. The Bureau of Reclamation retains
the management of the dam, an area immediately around the dam, and a
few other locations that are necessary for operating the reservoir.
The NPS at Lake Roosevelt preserves and protects a rich cultural
history throughout the park. Nine thousand years of human use of the
area is evident throughout the park through a variety of archeological
resources. Historical features such as St. Paul's Mission and Fort
Spokane attest to a more recent history. The natural features around
the lake tell the story of the Ice Age Floods that shaped this
landscape about 13,000 years ago. The recreation area is home to many
species of wildlife and fish, including bald eagles, peregrine falcons,
black bear, kokanee salmon and walleye. Ponderosa Pine and Douglas Fir
are plentiful. Popular types of recreation include fishing, swimming,
boating, water skiing, picnicking, and camping from vessels and
vehicles.

Purpose of Lake Roosevelt National Recreation Area

The purpose and significance statements below are from Lake
Roosevelt's Strategic Plan (NPS 2000) and General Management Plan (NPS
2000). Lake Roosevelt National Recreation Area was established for the
following purposes:
(1) To provide opportunities for diverse, safe, quality, outdoor
recreational experiences for the public.
(2) To preserve, conserve, and protect the integrity of natural,
cultural, and scenic resources.
(3) To provide opportunities to enhance public appreciation and
understanding about the area's significant resources. The Recreation
Area has no specific enabling legislation and was created under an act
passed in 1946 authorizing the administration of the areas by the NPS
for recreational use pursuant to cooperative agreements. [Act of August
7, 1946, 16 U.S.C. 17j-2(b)].

Significance of Lake Roosevelt National Recreation Area

The following statements summarize the significance of Lake
Roosevelt National Recreation Area:
(1) It offers a wide variety of recreation opportunities in a
diverse natural setting on a 154-mile-long lake that is bordered by 312
miles of publicly owned shoreline that is available for public use.
(2) It contains a large section of the upper Columbia River and a
record of continuous human occupation dating back more than 9,000
years.
(3) It is contained within three distinct geologic provinces--the
Okanogan Highlands, the Columbia Plateau, and the Kootenay Arc, which
were sculpted by Ice Age floods.
The park's mission statement is as follows: As a unit of the
national park system, Lake Roosevelt National Recreation Area is
dedicated to conserving unimpaired, the natural and cultural resources
and recreational and scenic values of Lake Roosevelt for the enjoyment,
education, and inspiration of this and future generations. The
recreation area also shares responsibility for advancing a great
variety of programs designed to help extend the benefits of natural and
cultural resource conservation and outdoor recreation.

Authority and Jurisdiction

Under the National Park Service's Organic Act of 1916 (Organic Act)
(16 U.S.C. 1 et seq.) Congress granted the NPS broad authority to
regulate the use of the Federal areas within the National Park System.
In addition, the Organic Act (16 U.S.C. 3) allows the NPS, through the
Secretary of the Interior, to ``make and publish such rules and
regulations as he may deem necessary or proper for the use and
management of the parks * * *''
16 U.S.C. 1a-1 states, ``The authorization of activities shall be
conducted in light of the high public value and integrity of the
National Park System and shall not be exercised in derogation of the
values and purposes for which these various areas have been established
* * *''
The NPS's regulatory authority over waters subject to the
jurisdiction of the United States, including navigable waters and areas
within their ordinary reach, is based upon the Property and Commerce
Clauses of the U.S. Constitution. In regard to the NPS, Congress in
1976 directed the NPS to ``promulgate and enforce regulations
concerning boating and other activities on or relating to waters within
areas of the National Park System, including waters subject to the
jurisdiction of the United States * * *'' (16 U.S.C. 1a-2(h)). In 1996
the NPS published a final rule (61 FR 35136, July 5, 1996) amending 36
CFR 1.2(a)(3) to clarify its authority to regulate activities within
the National Park System boundaries occurring on waters subject to the
jurisdiction of the United States.

PWC Use at Lake Roosevelt National Recreation Area

A variety of watercraft can be found on Lake Roosevelt during the
summer season, e.g., ski boats, PWC, runabouts, day cruisers, sailboats
(some with auxiliary motors), houseboats, and, to a lesser degree,
canoes, kayaks, and rowboats. Activities on the lake associated with
boating include sightseeing, water skiing, fishing, swimming, camping,
picnicking, and sailing. The park estimates that there were over 50,000
boat launches during the 2001 primary boating season based on the
launch fees counted at the park. Most boaters reside within 100 miles
of Lake Roosevelt but others come from cities and communities
throughout Washington, as well as from Idaho, Oregon and Canada. PWC
use is estimated at approximately 56 PWC users on a peak use summer day
in 2002, increasing to an average of 62 PWC users per peak use day by
2012.
PWC use began on Lake Roosevelt during the 1980s but did not become
fairly common until the mid-1990s. PWC are often used as a houseboat
accessory. Activities undertaken by PWC on Lake Roosevelt include
running up and down sections of the lake, towing skiers, jumping wakes,
and general boating activities. Surveys of boat trailers conducted in
2001 and 2002 estimate the number of PWC to be approximately 4% of all
boating use at Lake Roosevelt. PWC are allowed to launch, operate, and
beach from dawn to dusk throughout the national recreation area. The
primary PWC use season is June through September with some use from
April through May and October through December, but no use in winter
months because the weather and water is generally too cold.
In the past, PWC were regulated as vessels under the
Superintendent's Compendium and, along with other vessels, were allowed
in all areas of the lake. The Superintendent's Compendium is
terminology the NPS uses to describe the authority provided to the
Superintendent under 36 CFR 1.5 and 1.7. It allows for local, park-
specific regulations for a variety of issues and under specific
criteria. Before the closure, areas 100 feet around swim beaches,
marinas, and narrow sections

[[Page 35521]]

of the lake had speed or ``flat-wake'' restrictions applicable to all
vessels, based on Washington State boating regulations. In addition,
before the closure, flat-wake zones on the lake included Hawk Creek
from the waterfall at the campground to an area called ``the narrows''
and on the Kettle River above the Napoleon Bridge. Crescent Bay Lake,
located near Lake Roosevelt but not a connected waterway, was closed to
all motorized craft. In flat-wake zones vessels and PWC could not
exceed flat-wake speed, which is defined as a minimal disturbance of
the water by a vessel in order to prevent damage or injury.
None of the concessioners at Lake Roosevelt currently rent PWC.
Within 60 to 100 miles of the park, a total of five PWC dealerships
were identified in Wenatchee, Spokane, and Okanogan. No PWC dealerships
were identified closer to the park. A total of three rental shops were
found within 30 miles of the park including Banks Lake, Sun Lake, and
Blue Lake.
Within 100 miles of Lake Roosevelt National Recreation Area there
are several major lakes and many smaller lakes that allow PWC. The
larger lakes include Banks Lake and Lake Chelan in Washington and Lake
Coeur d'Alene and Lake Pend Oreille in Idaho.
Some research suggests that some segments of the public view PWC as
a ``nuisance'' due to their noise, speed, and overall effects on the
environment, while others view PWC as no different from other
watercraft and believe PWC users have a ``right'' to enjoy their sport.
There has been some conflict between PWC and fishermen, canoeists, and
swimmers at Lake Roosevelt.
A total of only eight safety incidents involving PWC were reported
on Lake Roosevelt during the years 1997 through 2002.

Notice of Proposed Rulemaking and Environmental Assessment

On February 6, 2004, the National Park Service published a Notice
of Proposed Rulemaking (NPRM) for the operation of PWC at Lake
Roosevelt National Recreation Area (69 FR 5799). The proposed rule for
PWC use was based on alternative B in the Environmental Assessment (EA)
prepared by NPS for Lake Roosevelt. The EA was available for public
review and comment from April 28 to May 28, 2003, and the NPRM was
available for public comment from February 6 to April 6, 2004.
The purpose of the environmental assessment was to evaluate a range
of alternatives and strategies for the management of PWC use at Lake
Roosevelt to ensure the protection of park resources and values while
offering recreational opportunities. The analysis assumed alternatives
would be implemented beginning in 2002 and considered a 10-year use
period, from 2002 to 2012. In addition, the analysis assumed that PWC
annual use will increase approximately 1% annually. Also, the analysis
assumed that, due to the narrow and linear characteristics of the
reservoir, each PWC that launches will recreate on waters managed by
both NPS and tribal entities during an average trip, regardless of
launch point. The NPS assumes no jurisdiction over tribal waters and
generally does not enforce regulations in those areas; however, because
of existing Memorandums of Understanding with the tribes the park may
respond to law enforcement or emergency situations on tribal waters.
The EA evaluated three alternatives concerning the use of PWC at
Lake Roosevelt National Recreation Area. Alternative A allows PWC use
under a special NPS regulation in accordance with NPS Management
Policies 2001, park practices, and state regulations. That is, after
the effective date of a final rule, PWC use would be the same as it was
before the closure on November 7, 2002. Therefore, under Alternative A,
PWC use would be allowed throughout the recreation area, with
limitations only in areas where restrictions existed before the
closure. These areas include the following: Crescent Bay Lake
(motorized watercraft restricted), Upper Kettle River, above the
Napoleon Bridge (flat wake), and Upper Hawk Creek from the waterfall
near the campground through the area known as the ``narrows'' (flat
wake). Launch and retrieval of PWC would continue to be permitted only
at designated boat launch ramps within Lake Roosevelt National
Recreation Area. PWC users would be able to land anywhere along the
shoreline, except in designated swimming areas. All nonconflicting
State and Federal watercraft laws and regulations would continue to be
enforced.
As with Alternative A, Alternative B reinstates PWC use under a
special regulation, but specific limits and use areas would be defined.
However, based on comments received from the public during the EA
scoping process and through the comment period for the EA, the NPRM
proposed to implement Alternative B with one modification; the Kettle
River would be closed to PWC above the Hedlund Bridge. Under
Alternative B, PWC use would be reinstated within Lake Roosevelt in
most locations of the recreation area where it was allowed prior to
November 7, 2002 with some new restrictions. Under this alternative,
the current flat-wake zone in Hawk Creek and the restriction on
motorized watercraft use on Crescent Bay Lake would remain. In
addition, extra flat-wake speed zoning would be implemented. These
flat-wake restrictions would apply to the following areas: Within 200
feet from launch ramps, marina facilities, campgrounds, beaches
occupied by swimmers, water skiers and other persons in the water and
the Spokane Arm from 200 feet west of the Two Rivers Marina on the
downstream end, to 200 feet east of the Fort Spokane launch ramp on the
upstream end, above the vehicle bridge. In addition to the extra flat-
wake zones, PWC use would be prohibited on the Kettle River from
Hedlund Bridge, north to the headwaters. Except for Napoleon Bridge
launch on the Kettle River where PWC launching would be prohibited,
launch and retrieval of PWC would be permitted only at designated boat
launch ramps within Lake Roosevelt National Recreation Area. As with
Alternative A, PWC users would be able to land anywhere along the
shoreline, except in designated swimming areas and all state and
federal watercraft laws and regulations would continue to be enforced.
The no-action alternative, would continue the current closure on PWC
use within this national park system unit.
As stated in the NPRM, based on the environmental analysis prepared
for PWC use at Lake Roosevelt National Recreation Area, Alternative B
is the preferred alternative and is also considered the environmentally
preferred alternative because it best fulfills park responsibilities as
trustee of this sensitive habitat; ensuring safe, healthful,
productive, and aesthetically and culturally pleasing surroundings; and
attaining a wider range of beneficial uses of the environment without
degradation, risk of health or safety, or other undesirable and
unintended consequences.

Summary of Comments

The proposed rule was published for public comment on February 6,
2004 (69 FR 5799), with the comment period lasting until April 6, 2004.
The National Park Service received 19 timely written responses
regarding the proposed regulation. All of the responses were separate
letters. Of the 19 separate letters, 14 were from individuals, 4 from
organizations, and 1 from a public agency. Within the following
discussion, the term ``commenter'' refers to an individual,
organization, or public

[[Page 35522]]

agency that responded. The term ``comments'' refers to statements made
by a commenter.

General Comments

1. Several commenters stated that the analysis and restrictions
should include all motorized watercraft and not be limited to only PWC.
NPS Response: The EA was not designed to determine if personal
watercraft caused more environmental damage to park resources than
other vessels, but rather to determine if personal watercraft use was
consistent with the park's purposes and management goals and
objectives. An analysis was done on the management of personal
watercraft in order to meet the requirement of the NPS general
regulations 36 CFR 3.24, for PWC use.
2. Several commenters stated that the proposed rule does not comply
with Park's General Management Plan because it allows PWC use upstream
of the Hedlund Bridge on the Kettle River.
NPS Response: The implementation of this final rule is consistent
with the Lake Roosevelt National Recreation Area General Management
Plan, which allows for continuing PWC use subject to additional
controls as necessary. The final rule, which is based on the updated
Preferred Alternative B, does not allow PWC use upstream of the Hedlund
Bridge on the Kettle River.
3. One commenter stated that the management of PWC by the NPS was
inconsistent with the Tri-Party Agreement signed in 1946 by the Bureau
of Reclamation, National Park Service and the Bureau of Indian Affairs.
NPS Response: PWC use under this final rule will be managed in
accordance with state boating regulations with additional management
prescriptions included as part of this alternative. The prescriptions
are within the authority of the National Park Service to regulate
recreational activities in areas under National Park Service
jurisdiction. The Lake Roosevelt Cooperative Management Agreement,
signed by the Secretary of the Interior on April 5, 1990, recognizes
Lake Roosevelt National Recreation Area as an existing unit of the
national park system and as such, subject to all NPS laws, regulations,
policies and guidelines.
4. Several commenters stated that the analysis failed to adequately
address NPS impairment policies and mandates.
NPS Response: The ``Summary of Laws and Policies'' section in the
``Environmental Consequences'' chapter of the EA summarizes the three
overarching laws that guide the National Park Service in making
decisions concerning protection of park resources. These laws, as well
as others, are also reflected in the NPS Management Policies. An
explanation of how the Park Service applied these laws and policies to
analyze the effects of personal watercraft on Lake Roosevelt National
Recreation Area resources and values can be found under ``Impairment
Analysis'' in the ``Methodology'' section of the EA.
An impairment is an impact that, in the professional judgement of
the NPS manager, would harm the integrity of park resources or values.
In the analysis used in the PWC use EA, an impairment to a particular
park resource or park value must rise to the magnitude of a major
impact, as defined by factors such as context, duration, and intensity.
For each resource topic, the Environmental Assessments establish
thresholds or indicators of magnitude of impact. An impact approaching
a ``major'' level of intensity is one indication that impairment could
result. For each impact topic, when the intensity approached ``major,''
the park would consider mitigation measures to reduce the potential for
``major'' impacts, thus reducing the potential for impairment.
5. One commenter stated that the proposed rule gave the
Superintendent of Lake Roosevelt National Recreation Area too much
discretion to react contrarily to public preference for PWC use.
NPS Response: Section 1.5 of Title 36 of the Code of Federal
Regulations authorizes a park superintendent to temporarily limit,
restrict, or terminate access to a park area to all public use or to a
specific use or activity. Except in emergency situations, prior to
implementing or terminating a restriction, condition, public use limit
or closure, the superintendent will prepare a written determination
justifying the action. The determination will set forth the reason(s)
the restriction or closure has been established and an explanation of
why less restrictive measures will not suffice. This authority is the
same authority that is given to all superintendents to manage visitor
use activities in any unit of the national park system.
6. One commenter stated that the analysis considered for the
proposed rule does not include adequate studies on visitor experience
related to PWC use.
NPS Response: The scope of the EA did not include conducting site
specific studies regarding potential effects of PWC use on the Lake
Roosevelt National Recreation Area. Analysis of potential impacts of
PWC use on the national recreation area was based on best available
data, input from park staff, and the results of analysis using that
data.
7. One commenter expressed concern that the water quality analysis
did not take into account the actual lake level, which is currently
well below full pool, when analyzing impacts from PWC use on water
quality.
NPS Response: Although the analysis did not look at the lower lake
levels described in this comment, the volume of water required for
dilution was calculated to be such a small volume that even with lower
lake levels impacts would be negligible adverse.
8. One commenter requested additional information regarding the
statement from Bluewater Network that research at Lake Mead, Nevada,
showed PWC dump 25-30% of unburned fuel into the water.
NPS Response: The report by the Bluewater Network cited in the
Selected Bibliography section of the EA is ``Jet Position Paper''
(2001) available on the Web at http://www.earthisland.org/bw/
jetskipos.htm. Information from this article is not used in the EA. In
appendix A of the EA, an emission rate of 3 gal./hour is attributed to
the California Air Research Board (CARB 1998). This is based on the
CARB (1998, 1999) estimate of 25-30% unburned fuel discharged into the
water. In Bluewater Network (2001), reference is made to figures in
Personal Watercraft Illustrated wherein model year 2000 personal
watercraft on average consume 15.1 gallons of fuel per hour at full
throttle and can dump between 25 and 30% of the fuel unburned into the
water or 3.79 to 4.53 gal/hour. The emission rate of 3 gal/hour used in
calculations of impacts to water quality is a mid-point between 3
gallons in 2 hours (1.5 gal/hour; NPS 1999) and 3.79 to 4.53 gal/hour
(Personal Watercraft Illustrated and Bluewater Network 2001). The
reference in the comment to ``25%-30% of unburned fuel in Lake Mead,
Nevada'' cannot be located in the Bluewater Network (2001) article, and
therefore, the raw data also cannot be located.
9. One commenter expressed concern that there was little discussion
of cumulative impacts to water quality in the analysis.
NPS Response: Cumulative impacts to water quality are not ignored
in the EA. Cumulative impacts are discussed for each of the three
alternatives on pages 95-96 and 98-99. The challenge in the EA was to
quantify the impacts to water quality from personal watercraft, other
motorized vessels, and from other sources of petroleum-based organic
compounds typical of those emitted from personal watercraft within the

[[Page 35523]]

Columbia River watershed. Contributions of organic pollutants from
personal watercraft and other motorized vessels were estimated for the
purpose of evaluating cumulative impacts from these two types of
vessels. As described on pages 88-89 of the EA, Lake Roosevelt National
Recreation Area does not have quantitative water quality data
applicable to the evaluation of impacts to the reservoir water quality.
Therefore, the contribution of organic contaminants from upstream
sources cannot be quantified. Because the EA was prepared for the
purpose of evaluating potential impacts from personal watercraft, which
constitute an estimated 4% of all motorized vessels on the reservoir
(page 84 of the EA), the contribution from these watercraft was not
ignored.
10. One commenter was concerned that the EA failed to adequately
address the impacts to wildlife from PWC use. The commenter felt that
the absence of osprey is directly related to PWC noise level and that
the EA does not address the loss of river otters.
NPS Response: The upper Hawk Creek area is designated as a flat-
wake zone (page 64 of the EA) which helps minimize noise disturbance of
waterfowl, including osprey. The decline of a species from an area is
usually the result of many contributing factors. These factors can
include a loss of habitat, loss of suitable prey organisms, increased
pollution levels, or other human disturbance. The apparent decline in
numbers of osprey likely is not due to just one factor (e.g., personal
watercraft noise levels), especially since Hawk Creek is a flat-wake
zone.
River otters are listed together with beaver as common small
mammals on page 63 of the EA. In the Environmental Consequences section
of the EA, ``Aquatic mammals such as beaver * * *'' are discussed in
the context of disturbance of wildlife and wildlife habitat. A list of
current protected (endangered, threatened, and species of concern)
species is provided in Table 9 (page 66 of the EA). The river otter is
not listed by either the U.S. Fish and Wildlife Service or the
Washington Department of Fish and Wildlife. If, as the comment
contends, the river otter is now absent from areas where it was once
abundant, it might be considered as an extirpated species--missing from
a formerly occupied area but still found in other areas of its normal
range.
11. Several commenters expressed concern regarding the park's
ability to adequately enforce the new regulations set forth in the
proposed rule.
NPS Response: PWC use under the final rule will be managed under
current NPS boating regulations, which adopt Washington State Boating
Laws, with additional management prescriptions included as a part of
this alternative. These management strategies are more restrictive than
state PWC regulations by increasing flat-wake speed zones and resource
monitoring. The prescriptions are within the NPS legal mandate to
regulate recreational activities under its jurisdiction, and there will
be no conflict with state or other federal policies or regulations.
Conflicts with regulations and policies of the Spokane Tribe of Indians
and the Confederated Tribes of the Colville Reservation would exist due
to differences in restrictions on the National Park Service versus
tribal waters. The park anticipates staffing at current levels will be
able to manage the new restrictions.
12. Two commenters were concerned that the socioeconomic impact
analysis was not adequate because it failed to consider impacts to
other non-PWC businesses if a ban on PWC was to continue.
NPS Response: As outlined in the EA, Alternative B is expected to
have minimal, if any, impact on local/regional socioeconomics since the
use of PWC at Lake Roosevelt will not be banned.
13. Two commenters expressed concern that that Spokane and Colville
Confederated Tribes were not consulted with during the planning
process.
NPS Response: The tribes were invited to review and comment on the
draft EA before it was released to the public. The superintendent,
after the public comment period closed, involved the tribal Business
Councils and senior BIA representatives in discussions about the final
version of the preferred alternative. Both tribes indicated that they
did not intend to limit use by PWC on the portions of Lake Roosevelt
that they manage and that for the NPS to act unilaterally on this issue
would cause great confusion for the recreating public, result in
greater impacts from PWC on the parts of the lake under their
management.
Economic Summary
The preferred alternative (Alternative B) and another alternative
(Alternative A) were analyzed to determine the economic impacts of
allowing the use of personal watercraft (PWC) in Lake Roosevelt
National Recreation Area (LARO).\1\ Alternative C, which would maintain
a ban on PWC in LARO, represents the baseline for this analysis. The
economic impacts of Alternatives A and B are measured relative to that
baseline. Alternative A would reinstate PWC use in LARO as previously
managed prior to the ban subject to specific location, flat wake,
launch and retrieval, and operating restrictions. Alternative B would
also reinstate PWC use, but includes additional location and flat wake
restrictions to mitigate watercraft safety and visitor health and
safety concerns, and to enhance the overall visitor experience.
Additionally, Alternative B would establish a monitoring program to
determine any future impacts of allowing PWC use in LARO.
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\1\ This summary briefly describes the results of the economic
analysis presented in National Park Service 2003.
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The primary beneficiaries of Alternatives A and B are the visitors
who would use PWCs within the recreation area if permitted, PWC users
in substitute areas outside LARO where individuals displaced from LARO
ride because of the ban, and the businesses that serve PWC users. All
visitors using PWCs in LARO prior to the ban are assumed to regain
their full economic value for PWC use in LARO under both Alternatives A
and B. PWC users who currently ride in substitute areas outside LARO
are assumed to gain some economic value if these areas are less crowded
than under baseline conditions due to reinstating PWC use in LARO.
Finally, suppliers of PWC rentals, sales, and service, as well as local
hotels, restaurants, gas stations, and other businesses that serve PWC
users, will likely experience an increase in business under
Alternatives A and B.
While beneficiaries may gain more economic value under Alternative
A than Alternative B due to fewer restrictions, NPS was unable to
quantify any differences, and considers the benefits of those two
alternatives to be similar. For both Alternatives A and B, PWC users
are expected to gain a total present value of benefits between
$1,076,400 and $1,311,300 over the next ten years, depending on the
discount rate used.\2\ Businesses are expected to gain a total present
value of benefits between $9,600 and $78,000, depending on the discount
rate used. The total present values of these benefits are presented in
Table 1, and their

[[Page 35524]]

amortized values per year are given in Table 2.
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\2\ Quantified economic impacts were discounted over the ten-
year timeframe using both 3 and 7-percent discount rates. A 3-
percent discount rate is indicated by the economics literature
(e.g., Freeman, 1993) and by two Federal rule-makings (61 FR 453; 61
FR 20584). A 7-percent discount rate is required by Office of
Management and Budget Circular A-94.

Table 1.--Total Present Value of Benefits (Thousands of Dollars) for Personal Watercraft Use in Lake Roosevelt
National Recreation Area, 2003 to 2012
----------------------------------------------------------------------------------------------------------------
PWC users Businesses Total
----------------------------------------------------------------------------------------------------------------
Alternative A:
Discounted at 3%\a\............ $1,311.3 $12.1 to $78.0............. $1,323.5 to $1,389.3
Discounted at 7%\b\............ 1,076.4 9.6 to 61.6................ 1,086.0 to 1,138.0
Alternative B:
Discounted at 3%\a\............ 1,311.3 12.1 to 78.0............... 1,323.5 to 1,389.3
Discounted at 7%\b\............ 1,076.4 9.6 to 61.6................ 1,086.0 to 1,138.0
----------------------------------------------------------------------------------------------------------------
\a\ The economics literature supports a 3-percent discount rate in the valuation of public goods (e.g., Freeman,
1993). Federal rule-makings also support a 3-percent discount rate in the valuation of lost natural resource
use (61 FR 453; 61 FR 20584).
\b\ Office of Management and Budget Circular A-94, revised January 2003.

Table 2.--Amortized Benefits per Year (Thousands of Dollars) for Personal Watercraft Use in Lake Roosevelt
National Recreation Area, 2003 to 2012 a
----------------------------------------------------------------------------------------------------------------
PWC users Businesses Total
----------------------------------------------------------------------------------------------------------------
Alternative A:
Discounted at 3% \b\............ $153.7 $1.4 to $9.1................ $155.2 to $162.9.
Discounted at 7% \c\............ 153.3 1.4 to 8.8.................. 154.6 to 162.0.
Alternative B:
Discounted at 3% \b\............ 153.7 1.4 to 9.1.................. 155.2 to 162.9.
Discounted at 7% \c\............ 153.3 1.4 to 8.8.................. 154.6 to 162.0.
----------------------------------------------------------------------------------------------------------------
\a\ This is the total present value of benefits reported in Table 1 amortized over the ten-year analysis
timeframe at the indicated discount rate.
\b\ The economics literature supports a 3-percent discount rate in the valuation of public goods (e.g., Freeman,
1993). Federal rule-makings also support a 3-percent discount rate in the valuation of lost natural resource
use (61 FR 453; 61 FR 20584).
\c\ Office of Management and Budget Circular A-94, revised January 2003.

The costs associated with Alternatives A and B would accrue
primarily to LARO visitors who do not use PWCs and whose recreation
area experience is negatively affected by the use of PWCs within the
recreation area. At LARO, non-PWC uses include boating, canoeing,
fishing, and hiking. Impacts to these users may include the aesthetic
costs associated with noise and visibility impacts, human health costs,
ecosystem degradation costs, and safety and congestion costs. Average
annual visitation to LARO was over 1.4 million people from 1998 to
2002. Most of these visitors are believed to come to the park for some
form of water-based recreation. However, non-PWC users accounted for
over 99 percent of total visitation.
``Nonusers'' of the recreation area may also bear some costs under
Alternatives A and B. For example, individuals who do not visit the
recreation area may experience a reduction in economic value simply
from the knowledge that the natural resources of the recreation area
may be degraded by PWC use. Part of this loss may stem from a decreased
assurance that the quality of the recreation area's resources is being
protected for the enjoyment of future generations.
Most of the costs associated with Alternatives A and B are believed
to be relatively small. Evaluating these costs in monetary terms was
not feasible with currently available data, but they are qualitatively
described in the economic analysis. Therefore, the benefits presented
in Tables 1 and 2 above overstate the net benefits (benefits minus
costs) of the different alternatives. If all costs could be quantified,
the indicated net benefits for each alternative would be lower than the
benefits indicated in Tables 1 and 2.
The costs associated with aesthetics, ecosystem protection, human
health and safety, congestion, and nonuse values would likely be
greater for Alternative A and for Alternative B due to the additional
restrictions on PWC use in Alternative B. Since the quantified benefits
for Alternatives A and B were the same, inclusion of these un-
quantified costs would reasonably result in Alternative B having the
greatest level of net benefits. Therefore, based on this analysis, the
selection of Alternative B as the preferred alternative was considered
reasonable.
References
Freeman, A. M. III. The Measurement of Environmental and Resource
Values: Theory and Methods. Washington, DC: Resources for the Future,
1993.
National Park Service. ``Economic Analysis of Management Alternatives
for Personal Watercraft in Lake Roosevelt National Recreation Area.''
Report prepared for the National Park Service by MACTEC Engineering and
Consulting, Inc., BBL Sciences, Inc., and RTI International, October
2003.

Changes to the Final Rule

Based on the preceding comments and responses, the NPS has made no
changes to the proposed rule language with regard to PWC operations.

Compliance With Other Laws

Regulatory Planning and Review (Executive Order 12866)

This document is not a significant rule and has not been reviewed
by the Office of Management and Budget under Executive Order 12866.
(1) This rule will not have an effect of $100 million or more on
the economy. It will not adversely affect in a material way the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities. This determination is based on the report ``Economic
Analysis of Management Alternatives for Personal Watercraft in Lake
Roosevelt National Recreation Area'' (MACTEC Engineering and
Consulting, Inc., October 2003).
(2) This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by

[[Page 35525]]

another agency. Actions taken under this rule will not interfere with
other agencies or local government plans, policies or controls. This
rule is an agency specific rule.
(3) This rule does not alter the budgetary effects of entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients. This rule will have no effects on entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients. No grants or other forms of monetary supplements are
involved.
(4) This rule does raise novel legal or policy issues. This rule is
one of the special regulations being issued for managing PWC use in
National Park Units. The National Park Service published general
regulations (36 CFR 3.24) in March 2000, requiring individual park
areas to adopt special regulations to authorize PWC use.

Regulatory Flexibility Act

The Department of the Interior certifies that this rulemaking will
not have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
This certification is based on a report entitled report ``Economic
Analysis of Management Alternatives for Personal Watercraft in Lake
Roosevelt National Recreation Area'' (MACTEC Engineering and
Consulting, Inc., October 2003).

Small Business Regulatory Enforcement Fairness Act (SBREFA)

This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This proposed rule:
a. Does not have an annual effect on the economy of $100 million or
more.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

This rule does not impose an unfunded mandate on State, local, or
tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local or tribal governments or the private sector. This rule is an
agency specific rule and does not impose any other requirements on
other agencies, governments, or the private sector.

Takings (Executive Order 12630)

In accordance with Executive Order 12630, the rule does not have
significant takings implications. A taking implication assessment is
not required. No taking of personal property will occur as a result of
this rule.

Federalism (Executive Order 13132)

In accordance with Executive Order 13132, the rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment. This final rule only affects use of NPS
administered lands and waters. It has no outside effects on other areas
by allowing PWC use in specific areas of the park.

Civil Justice Reform (Executive Order 12988)

In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order.

Paperwork Reduction Act

This regulation does not require an information collection from 10
or more parties and a submission under the Paperwork Reduction Act is
not required. An OMB Form 83-I is not required.

National Environmental Policy Act

As a companion document to the NPRM, NPS issued the Personal
Watercraft Use Environmental Assessment for Lake Roosevelt National
Recreation Area. The Environmental Assessment (EA) was open for public
review and comment from April 28, 2003 to May 28, 2003. A Finding of No
Significant Impact (FONSI) was signed on June 17, 2004. Copies of the
FONSI may be downloaded at http://www.nps.gov/laro or obtained
by calling 509-633-9441 ext. 110 or writing to the Superintendent, Lake
Roosevelt National Recreation Area, 1008 Crest Drive, Coulee Dam, WA
99116.

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994,
``Government to Government Relations with Native American Tribal
Governments'' (59 FR 22951) and 512 DM 2, we have evaluated potential
effects on federally recognized Indian tribes and have determined that
there are potential effects. Lake Roosevelt conducted preliminary
consultation with the Spokane Tribe of Indians and the Confederated
Tribes of the Colville Reservation in 2000 when the original rulemaking
came into effect. Since that time, the park has continued to keep the
Tribes informed in writing about various milestones during the PWC
process. The Colville Tribes also commented on the EA which supports
this rulemaking and supported the preferred alternative which is
implemented through this rulemaking. The NPS also consulted with the
Tribes on the provisions of the regulation and its possible effects on
tribal waters.

Administrative Procedure Act

This final rule is effective upon publication in the Federal
Register. In accordance with the Administrative Procedure Act,
specifically, 5 U.S.C. 553(d)(1), this rule, 36 CFR 7.55(c), is exempt
from the requirement of publication of a substantive rule not less than
30 days before its effective date.
As discussed in this preamble, the final rule is a part 7 special
regulation for Lake Roosevelt National Recreation Area that relieves
the restrictions imposed by the general regulation, 36 CFR 3.24. The
general regulation, 36 CFR 3.24, prohibits the use of PWC in units of
the national park system unless an individual park area has designated
the use of PWC by adopting a part 7 special regulation. The proposed
rule was published in the Federal Register (69 FR 5799) on February 6,
2004, with a 60-day period for notice and comment consistent with the
requirements of 5 U.S.C. 553(b). The Administrative Procedure Act,
pursuant to the exception in paragraph (d)(1), waives the section
553(d) 30-day waiting period when the published rule ``grants or
recognizes an exemption or relieves a restriction.'' In this rule the
NPS is authorizing the use of PWCs, which is otherwise prohibited by 36
CFR 3.24. As a result, the 30-day waiting period before the effective
date does not apply to the Lake Roosevelt National Recreation Area
final rule.
The Attorney General's Manual on the Administrative Procedure Act
explained that the ``reason for this exception would appear to be that
the persons affected by such rules are benefited by them and therefore
need no time to conform their conduct so as to avoid the legal
consequences of violation. The fact that an interested person may
object to such issuance, amendment, or repeal of a rule does not change
the character of the rule as being one ``granting or recognizing
exemption or relieving restriction,'' thereby exempting it from the
thirty-day requirement.'' This rule is within the scope of the
exception as

[[Page 35526]]

described by the Attorney General's Manual and the 30-day waiting
period should be waived. See also, Independent U.S. Tanker Owners
Committee v. Skinner, 884 F.2d 587 (DC Cir. 1989). In this case, the
court found that paragraph (d)(1) is a statutory exception that applies
automatically for substantive rules that relieves a restriction and
does not require any justification to be made by the agency. ``In sum,
the good cause exception must be invoked and justified; the paragraph
(d)(1) exception applies automatically'' (884 F.2d at 591). The facts
are that the NPS is promulgating this special regulation for the
purpose of relieving the restriction, prohibition of PWC use, imposed
by 36 CFR 3.24 and therefore, the paragraph (d)(1) exception applies to
this rule.
In accordance with the Administrative Procedure Act, this rule is
also excepted from the 30-day waiting period by the ``good cause''
exception in 5 U.S.C. 553(d)(3) and is effective upon publication in
the Federal Register. As discussed above, the purpose of this rule is
to comply with the 36 CFR 3.24 requirement for authorizing PWC use in
park areas by promulgating a special regulation. ``The legislative
history of the APA reveals that the purpose for deferring the
effectiveness of a rule under section 553(d) was ``to afford persons
affected a reasonable time to prepare for the effective date of a rule
or rules or to take other action which the issuance may prompt.''
S.Rep. No. 752, 79th Cong., 1st Sess.15 (1946); H.R. Rep. No. 1980,
79th Cong., 2d Sess. 25 (1946).'' United States v. Gavrilovic, 551 F.2d
1099, 1104 (8th Cir. 1977). The persons affected by this rule are PWC
users and delaying the implementation of this rule for 30 days will not
benefit them; but instead will be counterproductive by denying them,
for an additional 30 days, the benefits of the rule.

List of Subjects in 36 CFR Part 7

District of Columbia, National Parks, Reporting and recordkeeping
requirements.

? In consideration of the foregoing, the National Park Service amends 36
CFR part 7 as follows:

PART 7--SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM

? 1. The authority citation for part 7 continues to read as follows:

Authority: 16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also
issued under D.C. Code 8-137 (1981) and D.C. Code 40-721 (1981).

? 2. Amend Sec. 7.55 by revising the section title and adding new
paragraph (c) to read as follows:

Sec. 7.55 Lake Roosevelt National Recreation Area.

* * * * *
(c) Personal Watercraft (PWC). (1) PWCs are allowed on the waters
within Lake Roosevelt National Recreation Area except in the following
areas:
(i) Crescent Bay Lake.
(ii) Kettle River above the Hedlund Bridge.
(2) Launch and retrieval of PWC are permitted only at designated
launch ramps. Launching and retrieval of PWC at Napoleon Bridge launch
ramp is prohibited.
(3) PWC may land anywhere along the shoreline except in designated
swimming areas.
(4) PWC may not be operated at greater than flat-wake speeds in the
following locations:
(i) Upper Hawk Creek from the waterfall near the campground through
the area known as the ``narrows'' to the confluence of the lake, marked
by ``flat wake'' buoy(s).
(ii) Within 200 feet of launch ramps, marina facilities, campground
areas, water skiers, beaches occupied by swimmers, or other persons in
the water.
(iii) The stretch of the Spokane Arm from 200 feet west of the Two
Rivers Marina on the downstream end, to 200 feet east of the Fort
Spokane launch ramp on the upstream end, above the vehicle bridge.
(5) The Superintendent may temporarily limit, restrict or terminate
access to the areas designated for PWC use after taking into
consideration public health and safety, natural and cultural resource
protection, and other management activities and objectives.

Dated: June 10, 2004.
Paul Hoffman,
Deputy Assistant Secretary, Fish and Wildlife and Parks.
[FR Doc. 04-14115 Filed 6-24-04; 8:45 am]
BILLING CODE 4312-52-P

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