Title VII of the Arizona-Idaho Conservation Act of 1988 (AICA) established Mississippi National River and Recreation Area and created multiple requirements for the National Park Service (NPS) to review local, state, and federal actions within the park administrative boundaries. This webpage gives a general overview of these review requirements and is not exhaustive.
Generally, actions taken by federal government entities require a Sec 704(b) determination, state and local government entities fall under Sec. 705(d) of the AICA.
The reviews required under Section 704(b) and Section 705(d) of the AICA are separate from Mississippi River Critical Corridor Area (MRCCA) reviews. While local government units are required to notify the NPS of MRCCA actions, the MRCCA program is overseen by the Minnesota Department of Natural Resources (DNR). For more information about MRCCA visit the DNR website.
Sec. 704(b) Review of Federal Undertakings
As outlined Section 704(b) of the AICA, any federal department, agency, or instrumentality must notify the NPS before any federal agency undertakings (including federal assistance, permits, licenses, etc.) begin for the NPS to determine its compatibility with the park's Plan. The NPS will then review the undertaking for no more than 60 days and issue a determination of its compatibility with the park's Comprehensive Management Plan. If the undertaking requires modifications to conform with the plan the federal agency has 60 days to respond to the modifications.
The NPS requests federal agencies engage with the NPS at the earliest possible stage for a pre-action consultation to ensure a determination of compatibility is not issued after considerable work on the undertaking has already taken place. The NPS makes determinations of compatibility only on draft and final documents that have adequate information to determine impacts.
Please contact the MNRRA Planning Program Manager, Forest Eidbo to notify NPS of any federal undertakings within the park boundaries.
Who does Sec. 704(b) apply to?
All departments, agencies, and instrumentalities of the United States
Examples: US Army Corps of Engineers, Federal Reserve Bank of Minneapolis, Federal Railway Administration, Department of Housing and Urban Development, etc.
What does Sec. 704(b) apply to?
All undertakings including licenses, permits and financial assistance to third parties
Examples: Disposition studies of federal property, Section 10 of the Rivers and Harbors Act permit, expansion of a federal office building, grant to the city of Brooklyn Park for a housing development, etc.
Where does Sec. 704(b) apply to?
Only undertakings within the administrative boundaries of the Mississippi National River and Recreation Area are subject to Sec. 704(b). The administrative boundaries are functionally identical to the Mississippi River Corridor Critical Area (MRCCA) boundaries and therefore can be used as a guide.
Projects outside the Mississippi National River and Recreation Area boundaries will not be reviewed.
What is the Sec. 704(b) determination process?
Government entities should notify the NPS as soon as possible to an applicable undertaking. Early notification prevents disruptive late-stage negative determinations.
The NPS will work with the responsible entity to ensure the undertaking will comply with the requirements found in Sec. 704(b).
The NPS will make a formal Sec. 704(b) determination on draft and final undertaking actions. The NPS makes most determinations within 21 days but is authorized under Sec. 704(b) to take up to 60 days. Agencies that receive a negative determination have 60 days to modify the undertaking if requesting a second review by the NPS.
What about NEPA?
Section 704(b) determinations are a federal action that should be rolled into the NEPA process. The NPS may be a cooperating agency for NEPA if the undertaking is receiving a 704(b) determination.
Who do I contact to start the process?
Primary Contact
Forest Eidbo, Planning Program Manager, Forest_Eidbo@nps.gov
Before any department, agency, or instrumentality of the United States issues or approves any license or permit for any facility or undertaking within the Area and before any such department, agency, or instrumentality commences any undertaking or provides any Federal assistance to the State or any local governmental jurisdiction for any undertaking within the Area, the department, agency, or instrumentality shall notify the Secretary. The Secretary shall review the proposed facility or undertaking to assess its compatibility with the plan approved under section 460zz–2 of this title. The Secretary shall make a determination with respect to the compatibility or incompatibility of a proposed facility or undertaking within 60 days of receiving notice under this subsection. If the Secretary determines that the proposed facility or undertaking is incompatible with the plan, he shall immediately notify such Federal department, agency, or instrumentality and request such department, agency, or instrumentality to take the actions necessary to conform the proposed facility or undertaking to the plan. The Federal department, agency, or instrumentality shall, within 60 days after receiving the Secretary's request, notify the Secretary of the specific decisions made in response to the request. To the extent that such department, agency, or instrumentality does not then conform such facility or undertaking to the request of the Secretary, the Secretary is directed to notify the Congress in writing of the incompatibility of such facility or undertaking with the plan approved under section 460zz–2 of this title.
(2) Navigation
(A) Nothing in this part shall be deemed to impact or otherwise affect such existing statutory authority as may be vested in the Secretary of the Department in which the Coast Guard is operating or the Secretary of the Army for the maintenance of navigation aids and navigation improvements: Provided, That in exercising such authority the Secretary of the Army, through the Corps of Engineers and the Secretary of the Department in which the Coast Guard is operating, shall not take any action that would have a direct and adverse effect on the values for which the Area is established unless such action is essential for the protection of public health or safety or is necessary for national security or defense.
(B) In planning for the development and public use of the Area, the Secretary shall consult with the Secretary of the Army to assure that public use of adjacent or related water resource developments or flood control projects and that of the Area are compatible.
Sec. 705(d) Review of State, Regional, and Local Undertakings
As outlined in Section 705(d) of the AICA, the NPS reviews all relevant local plans, laws, permits and ordinances to determine whether they substantially conform to the park's Comprehensive Management Plan.
Actions that are reviewed, found non-conforming and are undertaken without recommended modifications may subject the local government unit to repay previous NPS grant funds, make them ineligible for future NPS grants, and in extreme cases result in state or federal acquisition of the land where the action will take place.
Whenever possible and feasible the NPS will review these state and local actions and make determinations following existing review timelines associated with the action.
Please contact the MNRRA Planning Program Manager, Forest Eidbo to notify the NPS of any actions within the park boundaries.
Who does Sec. 705(d) apply to?
State of Minnesota and all political subdivisions
Examples: Minnesota Pollution Control Agency, Ravenna Township, City of Dayton, Metropolitan Council, etc.
What does Sec. 705(d) apply to?
Plans, laws, and ordinances and tools used to enforce plans, laws and ordinances
Examples: Comprehensive plans, building permits, zoning variances, conditional use permits, preliminary plats, licenses, environmental assessments, etc.
Where does Sec. 705(d) apply to?
Only activities and government entities within the administrative boundaries of the Mississippi National River and Recreation Area are subject to Sec. 705(d). The administrative boundaries are functionally identical to the Mississippi River Corridor Critical Area (MRCCA) boundaries and therefore can be used as a guide.
Projects outside the Mississippi National River and Recreation Area boundaries will not be reviewed.
What is the Sec. 705(d) determination process?
Government entities should notify the NPS as soon as possible to an applicable undertaking. Early notification prevents disruptive late-stage negative determinations.
The NPS will work with the responsible entity to ensure the undertaking will comply with the requirements found in Sec. 705(d).
The NPS will make a formal Sec. 705(d) determination on draft and final undertaking actions. The NPS will make determinations on standard undertakings within 21 days. For undertakings where there was not early notification or there are additional unique characteristics determinations can take up to 60 days.
What are the consequences of proceeding with an action that receives a negative Sec. 705(d) determination?
The NPS will first notify the responsible entity of their negative determination. If the responsible entity continues to proceed with the noncompliant action the NPS levy a combination of the following enforcement actions as deemed necessary by the Superintendent of Mississippi National River and Recreation Area:
Deem the responsibly entity ineligible for federal financial assistance under Sec. 706 of the AICA
Require the repayment of federal financial assistance under Sec. 706 of the AICA
Acquire the relevant land or interests in land without the consent of the owner
Who do I contact to start the process?
Primary Contact
Forest Eidbo, Planning Program Manager, Forest_Eidbo@nps.gov
For the purpose of protecting the integrity of the Area the Secretary shall cooperate and consult with the State and the appropriate political subdivisions to review all relevant local plans, laws and ordinances to determine whether they substantially conform to the plan approved pursuant to section 460zz–2 of this title. Additionally the Secretary shall in consultation with the State and its political subdivisions determine the adequacy of enforcement of such plans, laws, and ordinances, including review of building permits and zoning variances granted by local governments, and amendments to local laws and ordinances. The Secretary shall enter into agreements with the State or its political subdivisions to provide, on behalf of the Secretary, professional services necessary for the review of such local plans, laws, and ordinances, and of amendments thereto and variances therefrom, and for the monitoring or the enforcement thereof by local governments having jurisdiction over any areas to which the management plan applies.
(2) Purpose
The purpose of review under paragraph (1) shall be to determine the degree to which actions by local governments are compatible with the purposes of this subchapter. Following the approval of the plan under section 460zz–2 of this title and after a reasonable period of time has elapsed, upon a finding by the Secretary that such plans, laws and ordinances are nonexistent, are otherwise not in conformance with the plan or are not being enforced in a manner consistent with the plan, and if the Secretary determines that there is no feasible alternative available to prevent uses which would be substantially incompatible with the plan, the Secretary may exercise the authority available to him under the provisions of paragraph (3).
(3) Enforcement
In those sections of the Area where local plans, laws and ordinances, or amendments thereto or variances therefrom are found by the Secretary not to be in conformance with the plan approved pursuant to section 460zz–2 of this title, or are not being enforced in a manner consistent with the plan, the Secretary shall notify the local government authority concerned. The Secretary may withhold from the local government authority concerned or, require reimbursement of, (A) Federal funds made available for implementation of the plan, or (B) any grant under section 460zz–5(a) of this title if the local plan, law, ordinance, amendment, or variance is not modified to conform with the plan and enforced in such manner as will carry out the purposes of this part. If the State has not initiated, within a 60-day period, such judicial or other action as necessary to ensure conformity with the plan, and if noncompliance with the plan or failure to enforce the plan continues after the end of such 60-day period, the Secretary may acquire, subject to appropriations, land or interests in land under this subsection without the consent of the owner thereof. Land and interests in land acquired pursuant to this subsection shall be restricted to the geographical area of the local government unit failing to conform with the plan and shall be limited to those lands clearly and directly required, in the judgment of the Secretary, for the protection of the Area in a manner compatible with the plan.
(e) Retention by owner of use and occupancy
The Secretary may permit the owner or owners of any improved residential property acquired by the Secretary under this part to retain a right of use and occupancy of the property for noncommerical residential uses not incompatible with the plan approved under section 460zz–2 of this title. The provisions of subsection (c), (d), and (e) of section 460ii–1 of this title shall apply to the retention of such rights, except that for purposes of this part, the applicable date shall be January 1, 1987 in lieu of January 1, 1975 and the purposes of this part shall be substituted for the purposes referred to in section 460ii–1(d) of this title.
