[Federal Register Volume 65, Number 183 (Wednesday, September 20, 2000)]
[Proposed Rules]
[Pages 56821-56835]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-23424]


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TENNESSEE VALLEY AUTHORITY

18 CFR Part 1304


Approval of Construction in the Tennessee River System; 
Regulation of Structures; Residential Related Use on TVA-Controlled 
Residential Access Shoreline and TVA Flowage Easement Shoreline

AGENCY: Tennessee Valley Authority (TVA).

ACTION: Proposed rule.

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SUMMARY: TVA is today proposing to amend its regulations under section 
26a of the TVA Act governing the construction, operation, or 
maintenance of any dam, appurtenant works, or other obstruction 
affecting navigation, flood control, or public lands or reservations 
along or in the Tennessee River or any of its tributaries. The 
amendments would generally update the existing section 26a regulations 
to include new sections governing underground and aboveground storage 
tanks, marina sewage pump-out stations and holding tanks, wastewater 
outfalls and septic systems, development within flood control storage 
zones of TVA reservoirs, and requests for waivers or variances. The 
sections governing the application process and the handling of appeals 
would be revised for clarity. The rules for nonnavigable houseboats 
would be clarified, and a provision would be added governing sanitation 
for nonnavigable houseboats. In addition, new subparts would be added 
to implement TVA's recently-adopted ``Shoreline Management Initiative'' 
policy.

DATES: Written comments on these proposed rules will be accepted until 
November 20, 2000.

ADDRESSES: Written comments on the substance of the rulemaking should 
be addressed to Robert L. Curtis, Specialist-Land Policy, Resource 
Stewardship, Tennessee Valley Authority, Post Office Box 1589, 17 
Ridgeway Road, Norris, Tennessee 37828. Electronic comments may be 
submitted to [email protected]. Paperwork Reduction Act comments should 
be addressed as explained below.

FOR FURTHER INFORMATION CONTACT: Robert L. Curtis, (865) 632-1552.

SUPPLEMENTARY INFORMATION:

I. Legal Authority

    These regulations are proposed under the authority of section 26a 
of the Tennessee Valley Authority Act of 1933 (16 U.S.C. 831y-1), and 
TVA's property rights under certain deeds and flowage easement 
instruments.

II. Background

    Section 26a of the TVA Act provides that no dam, appurtenant works, 
or other obstruction affecting navigation, flood control or public 
lands or reservations shall be constructed, and thereafter operated or 
maintained across, along, or in the Tennessee River system or any of 
its tributaries until the plans for such construction, operation, or 
maintenance shall have been submitted to and approved by the TVA Board 
of Directors, or its delegate. Commencement of construction, operation, 
or maintenance of such structures without such approval is prohibited.
    On October 22, 1971, TVA promulgated regulations setting forth the 
approval process and establishing a number of policies regarding the 
exercise of TVA's section 26a authority. The regulations have since 
been amended from time to time. This proposed rulemaking would further 
amend the existing regulations by adding new sections regarding 
underground and aboveground storage tanks, marina sewage pump-out 
stations and holding tanks, wastewater outfalls and septic systems, and 
development within flood control storage zones of TVA reservoirs. A new 
section providing for the handling of requests for waivers or variances 
would be added, and the sections governing the application process and 
the handling of appeals would be revised for clarity.
    TVA also proposes to add new subparts C and D regarding 
residential-related use of TVA-controlled residential access shoreline 
and TVA flowage easement shoreline. The rules contained in these 
subparts would implement the ``Shoreline Management Initiative'' policy 
adopted by TVA's Board of Directors on April 21, 1999. Through these 
rules, TVA would promote the conservation of shoreline resources to 
provide public use opportunities and protect environmentally sensitive 
resources, while also accommodating access to the shore by adjacent 
residents.

III. Detailed Analysis of Proposed Rule

A. Approval of Construction

    Today's proposal would make minor revisions to the existing process 
for obtaining approvals required under section 26a of the TVA Act. This 
subpart would apply to all cases involving an obstruction subject to 
section 26a approval or otherwise requiring TVA approval under these 
rules (including, among other things, TVA-owned residential access 
shoreland uses described in proposed subpart C and certain uses of TVA 
flowage easement property under proposed subpart D).
    1. Scope and intent. This section (Sec. 1304.1) sets forth the 
authorities for and the purposes of TVA's regulation of structures in 
the Tennessee River system and activities on land in which TVA has a 
property interest. Part 1304 is generally applicable to all 
obstructions in the river system and to activities conducted on 
reservoir-related property in TVA's custody or subjects to TVA flowage 
easements.
    2. Application. If the rule is amended as proposed, section 26a 
facilities would, for purpose of the application process and certain 
other purposes, be divided into ``minor'' and ``major'' facilities. 
Applicants for minor facilities would have to include less information 
with their applications. Nonexclusive examples of minor and major 
facilities are provided in the proposed rule. TVA believes that in most 
cases it will be readily apparent whether a facility should be 
classified as minor or major. Generally, it is TVA's intention that 
most residential related facilities for individual use would be minor 
facilities. For application purposes, a request for a variance to the 
size limitations for a residential-related facility would be regarded 
as an application for a ``major'' facility. Commercial or community 
facilities likely would be much larger than individual facilities and 
usually would be classified as major. TVA would encourage applicants to 
inquire in advance for guidelines in cases where it may not be clear 
whether a proposed facility would be minor or major.
    3. Delegation of Authority and Application Review and Approval 
Process. The rule would be revised to reflect the current 
organizational structure of TVA. The information required to be 
included with applications for each type of facility would be 
specified. The procedures for TVA's consideration of applications, 
including the procedures applicable to hearings and appeals, would be 
clarified.

B. Regulation of Nonnavigable Houseboats

    The regulation governing nonnavigable houseboats would be

[[Page 56822]]

revised to better distinguish between navigable and nonnavigable 
houseboats and to more clearly specify where nonnavigable houseboats 
may be moored. A provisions governing sanitation would be added. As in 
the current rule, no new nonnavigable houseboats would be allowed.

C. Residential-Related Use of TVA-Controlled Residential Access 
Shoreline

    Today's proposal contains a new subpart (subpart C) regarding 
residential-related use of TVA-controlled residential access shoreline.
    1. Applicability. This subpart addresses access across, and 
construction of facilities and vegetation management on, three 
categories of TVA-owned shoreland property by adjacent upland 
residential landowners (for ease of reference, property owned by the 
United States and under the custody and control of TVA is referred to 
in this preamble and throughout the proposed rule as ``TVA-owned''):
     TVA-owned shorelands over which the adjacent upland 
residential landowners hold deeded rights of ingress and egress for 
access to the water (except where a particular activity is excluded by 
the deed language) and/or the right to apply to construct water-use 
facilities.
     TVA-owned shorelands designated in current, approved TVA 
Reservoir Land Management Plans as open for consideration of 
residential shoreline development.
     On reservoirs not having a current, approved TVA Reservoir 
Land Management Plan at the time of application, TVA-owned shorelands 
designated in TVA's property forecast system as ``reservoir operations 
property,'' identified in a subdivision plat recorded prior to 
September 24, 1992, and containing at least one water-use facility 
developed prior to September 24, 1992.
    Subpart C would apply only to TVA-owned property adjacent to 
reservoirs. It would not apply to land adjacent to a free-flowing 
river--whether or not TVA-owned. Obstructions on land adjacent to a 
free-flowing river would be regulated under amended subparts A, B, and 
E; if TVA owns the property, construction of facilities and vegetation 
management on, and access across such land would be controlled by TVA 
on a case-by-case basis. Subparts C and D would not apply to commercial 
marinas or other commercial facilities. Such facilities would be 
regulated in accordance with subparts A, B, and E, and, where TVA has a 
property interest, in accordance with the full exercise of TVA's rights 
under such interest.
    No residential-related obstructions, shoreline structures, access 
corridors, or vegetation management activities would be allowed on any 
TVA-owned reservoir land not included in one of the three categories 
specified in the proposed rule.
    2. Vegetation Management. It is expected that requests for 
permission to manage vegetation on TVA-owned lands would, for the most 
part, be made in conjunction with a request to construct a dock or 
other obstruction under section 26a. However, adjacent upland 
residential landowners may wish to engage in vegetation management 
activities on TVA-owned lands without constructing any facility 
regulated under section 26a. In such circumstances, the proposed rules 
would still require the adjacent landowner to apply for and obtain a 
permit before engaging in any vegetation management on TVA-owned lands.
    3. Docks, Piers, and Other Water-Use Facilities. Under the proposed 
rule, adjacent property owners would be responsible for submitting 
drawings of proposed facilities for TVA review and approval to ensure 
that the applicable standards would be met and that the facility would 
otherwise be consistent with TVA's management of the Tennessee River 
system. To provide design suggestions for private water-use facilities, 
TVA makes available sample drawings for docks, piers, and boatslips. 
Adjacent property owners may use these drawings or create their own 
drawings reflecting their design preferences in a way that meets TVA's 
size and construction requirements.
    Standards for the size and type of docks permitted by TVA help to 
avoid the construction of structures that obstruct or otherwise have an 
adverse impact on boating access into coves or along the shore. They 
also help to limit obstructions to visibility. The proposed dock 
standards are designed in a way that numerous different shapes, sizes, 
and combinations of facilities could be built. The standards are 
designed to define the maximum size of docks and other water-use 
facilities that are approvable by TVA. Unless there are environmental 
resources that must be avoided, navigation restrictions, or physical 
site constraints such as a narrow cove, decisions about the size and 
type of docking facilities to be built would be made by the applicant, 
provided the maximum standards are not exceeded. When site constraints 
preclude the building of maximum-size facilities, TVA would determine 
if a smaller facility could be approved and, if so, what size facility 
would be allowed.
    4. Group and Community Water-Use Facilities. TVA recognizes that 
subdivision developers or chartered homeowner's associations may wish 
to develop group or community water-use facilities on a community lot 
or other site. In such cases, some deviation from the requirements 
applicable to individual adjacent upland landowners may be appropriate. 
Generally, where individual upland landowners have deeded ingress and 
egress rights, they may apply to construct individual water-use 
facilities and undertake vegetation management activities even though a 
community facility has been approved.
    5. Channel Excavation on TVA-Owned Residential Access Shoreland. 
The standards for channel excavation are designed to minimize impacts 
upon water quality and aquatic communities and avoid obstructions that 
would adversely affect navigation or flood control.
    6. Shoreline Stabilization. TVA generally will allow homeowners to 
choose between riprap, biostabilization, gabions, retaining walls, or a 
combination of the four approaches for erosion control. Retaining walls 
are not a favored method of treating shoreline erosion. They typically 
require extensive site disturbance during construction, which can 
destroy fish spawning and feeding areas. Their vertical surface does 
not provide desirable aquatic habitat conditions, and they often fail 
because of improper design, causing further site disturbance. As 
requested by the homeowner, TVA may assess shoreline erosion conditions 
and advise whether biostabilization, riprap, gabions, retaining walls, 
or some combination of these treatment methods would be most 
appropriate.

D. Activities on TVA Flowage Easement Shoreland

    This subpart governs use of privately-owned shorelands where TVA 
has acquired flowage easements and thus has the right to flood the land 
as part of its reservoir operations. TVA's authority with respect to 
such lands stems from its authority under section 26a of the TVA Act 
and the rights accorded to TVA under the flowage easement 
documentation. Under the proposed rule, TVA generally would apply to 
flowage easement lands the same standards regarding docks, piers, and 
other water-use facilities, shoreline stabilization, fish attractors, 
and channel excavation (to the extent it creates an obstruction 
regulated under section 26a) as would be applicable to residential-
related use of TVA-controlled residential access shoreline.

[[Page 56823]]

Decisions about vegetation management and any other activities not 
subject to regulation under section 26a or prevented or regulated by 
the terms of the flowage easement would be made by the landowner. 
Subpart D specifically identifies the sections of subpart C that are 
applicable to flowage easement shoreland.

E. Miscellaneous

    This subpart contains rules of general applicability and other 
miscellaneous provisions. To the extent anything contained in this 
subpart may be inconsistent with the standards set forth in subparts C 
and D, those subparts shall take precedence on the lands to which they 
apply.
    1. Definitions. A number of new definitions would be added to 
improve clarity.
    2. Flotation Devices and Materials. The proposed rule 
(Sec. 1304.401) would impose minimum specifications for flotation 
devices associated with docks, boat mooring buoys, and other water-use 
structures and facilities.
    3. Discharges From Houseboats, Watercraft, and Floating Structures. 
This section (Sec. 1304.402) would continue the existing prohibition 
against the mooring over TVA land of any watercraft or floating 
structure equipped with a marine sanitation device unless such device 
is in compliance with all applicable requirements.
    4. Wastewater Outfalls and Septic Systems. New Sec. 1304.403 would 
require facilities required to have a wastewater permit to obtain such 
permit before a section 26a permit would be issued. Septic tank systems 
where any portion of the system is located on TVA flowage easement 
property would be subject to permitting requirements and certain 
specified standards. No portion of any septic tank system would be 
allowed on TVA-owned shoreland property.
    5. Marina Sewage Pump-out Stations and Holding Tanks. The proposed 
rule would establish minimum design and operating requirements for new 
marina sewage pump-out stations and holding tanks (Sec. 1304.404). 
Other Federal, State, or local laws or rules may require installation 
of such facilities or otherwise regulate them in some circumstances.
    6. Fuel Storage Tanks and Handling Facilities. The proposed 
regulations (Sec. 1304.406) would establish minimum requirements for 
the installation of underground and aboveground storage tanks in 
connection with commercial facilities subject to TVA approval. TVA is 
considering new requirements for fuel handling piping systems 
associated with storage tanks and for fuel containment provisions at 
fuel pumps located on commercial docks, piers, and marinas. Generally, 
except in unusual circumstances where there is no other practicable 
solution, TVA does not approve storage tanks on TVA lands. Tanks must 
be located on land owned by the applicant. Also, TVA would not approve 
fuel handling facilities of any kind on private non-commercial docks, 
piers, and boathouses.
    7. Development Within Flood Control Storage Zones of TVA 
Reservoirs. A new section (Sec. 1304.408) imposing certain requirements 
when a project would result in a loss of flood control storage would be 
added.
    8. Request for Waiver or Variance. A new section (Sec. 1304.409) 
would establish a mechanism for requesting a waiver of or variance from 
a provision of the rules. Good cause would be required for approval of 
such requests, and approval or disapproval would be at the sole 
discretion of the Vice President, Resource Stewardship, TVA.

IV. Compliance With Other Laws

A. Unfunded Mandates Reform Act

    The proposed rule contains no Federal mandates for State, local, 
and tribal Governments or the private sector. Rather, it simply 
codifies policies and requirements regarding the use of TVA land and 
the size, type, and use of obstructions to be allowed in the Tennessee 
River. In addition, any expenditures by State, local and tribal 
governments or the private sector in connection with the rule would be 
substantially less than $100 million in any one year.

B. Regulatory Flexibility Act

    This proposed action will not have a significant economic impact on 
a substantial number of small entities. There will be no significant 
economic impact from the amendments since the proposed rule would not 
significantly add to the costs of one who chooses to use TVA land or 
construct an obstruction in the Tennessee River system. Existing 
obstructions that are or could be permitted under current regulations 
would not have to be modified to conform to new standards.
    Any economic impact that would occur as a result of the proposed 
rule would not affect a substantial number of small entities because 
TVA only processes about 300 applications annually for nonresidential 
facilities.

C. Environmental Review

    TVA prepared a detailed draft environmental impact statement (EIS) 
assessing residential shoreline development impacts in the Tennessee 
Valley. Copies of the Executive Summary and/or draft EIS were 
distributed to numerous State agencies and public libraries in the 
Tennessee Valley and to approximately 8,000 interested individuals. 
Sixteen public meetings were held, and numerous oral and written 
comments were received and considered. A final EIS adopting the 
residential access policies that would be implemented by these rules 
has been released, and a record of decision has been issued. This 
proposed rulemaking reflects the involvement of the interested public 
during the environmental review process. An Environmental Assessment is 
being prepared for those aspects of the proposed rule not addressed in 
the residential shoreline development EIS.

D. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval of the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. Sec. 3501 et seq. An 
Information Collection Request (ICR) document has been prepared by TVA, 
and a copy may be obtained from Wilma H. McCauley, Agency Clearance 
Officer, Tennessee Valley Authority, 1101 Market Street (WR 4Q), 
Chattanooga, Tennessee 37402-2801 or by calling (423) 751-2523.
    The only information collection activity contained in the proposed 
rule is a requirement that persons seeking approval to construct an 
obstruction along or in the Tennessee River system or authorization to 
use certain property under TVA's control submit an application to TVA. 
The application consists of an application form plus, in the case of an 
obstruction, detailed plans, maps, and other information necessary for 
TVA to evaluate the request for approval. The estimated time to 
complete the application form and prepare the supplemental material is 
1.5 hours. The time may vary depending upon the nature and complexity 
of the proposed action.
    Comments are requested on TVA's need for this information, the 
accuracy of the provided burden estimates, and any suggestions for 
minimizing respondent burden. Send comments on the ICR to the Agency 
Clearance Officer, Tennessee Valley Authority, 1101 Market Street (WR 
4Q), Chattanooga, Tennessee 37402-2801; and to the Officer of 
Information and Regulatory Affairs, Office of Management and Budget, 
725 17th Street, NW., Washington, DC 20503, marked ``Attention: Desk 
Officer for Tennessee

[[Page 56824]]

Valley Authority.'' Include the ICR number in any correspondence. 
Comments should be received by OMB no later than thirty (30) days after 
the date of public of this proposed rule. The final rule will respond 
to any OMB or public comments on the information collection 
requirements contained in this proposal.

List of Subjects in 18 CFR Part 1304

    Administrative practice and procedure, Natural resources, 
Navigation (water), Rivers, Water pollution control.

    For the reasons set forth in the preamble, title 18, chapter XIII 
of the Code of Federal Regulations is amended by revising part 1304 to 
read as follows:

PART 1304--APPROVAL OF CONSTRUCTION IN THE TENNESSEE RIVER SYSTEM 
AND REGULATION OF STRUCTURES

Subpart A--Procedures for Approval of Construction
Sec.
1304.1  Scope and intent.
1304.2  Application.
1304.3  Delegation of authority.
1304.4  Application review and approval process.
1304.5  Conduct of hearings.
1304.6  Appeals.
1304.7  Conditions of approvals.
1304.8  Denials.
1304.9  Initiation of construction.
1304.10  Change in ownership of approved structures.
1304.11  Little Tennessee River; date of formal submission.
Subpart B--Regulation of Nonnavigable Houseboats
1304.100  Scope and intent.
1304.101  Nonnavigable houseboats.
1304.102  Numbering of nonnavigable houseboats and transfer of 
ownership.
1304.103  Approval of plans for structural modifications or 
rebuilding of approved nonnavigable houseboats.
Subpart C--TVA Owned Residential Access Shoreland
1304.200  Scope and intent.
1304.201  Applicability.
1304.202  General sediment and erosion control provisions.
1304.203  Vegetation management.
1304.204  Dock, piers, and boathouses.
1304.205  Other water-use facilities.
1304.206  Requirements for community dock, pier, boathouse, or other 
water-use facilities.
1304.207  Channel excavation on TVA-owned residential access 
shoreland.
1304.208  Shoreline stabilization.
1304.209  Fish attractor, spawning, and habitat structures.
1304.210  Land-based structures/alterations.
1304.211  Grandfathering of preexisting shoreline uses and 
structures.
1304.212  Change in ownership of grandfathered structures or 
alterations.
1304.213  Waivers on TVA-owned residential access shoreland.
1304.214  Numbering of structures.
Subpart D--Activities On TVA Flowage Easement Shoreline
1304.300  Scope and intent.
1304.301  Septic tanks.
1304.302  Utilities.
1304.303  Vegetation management on flowage easement shoreline.
1304.304  Channel excavation.
Subpart E--Miscellaneous
1304.400  Definitions.
1304.401  Flotation devices and material, all floating structures.
1304.402  Marine sanitation devices.
1304.403  Wastewater outfalls; septic tanks.
1304.404  Marina sewage pump-out stations and holding tanks.
1304.405  Commercial marina harbor limits.
1304.406  Fuel storage tanks and handling facilities.
1304.407  Removal of unauthorized, unsafe, and derelict structures.
1304.408  Development within flood control storage zones of TVA 
reservoirs.
1304.409  Variances.
1304.410  Indefinite or temporary moorage of recreational vessels.
1304.411  Navigation restrictions.

    Authority: 16 U.S.C. 831-831ee.

Subpart A--Procedures for Approval of Construction


Sec. 1304.1  Scope and intent.

    The Tennessee Valley Authority Act of 1933 among other things 
confers on TVA broad authority related to the unified conservation and 
development of the Tennessee River Valley and surrounding area and 
directs that property in TVA's custody be used to promote the Act's 
purposes. In particular, section 26a of the Act requires that TVA's 
approval be obtained prior to the construction, operation, or 
maintenance of any dam, appurtenant works, or other obstruction 
affecting navigation, flood control, or public lands or reservations 
along or in the Tennessee River or any of its tributaries. By way of 
example only, such obstructions may include boat docks, piers, 
boathouses, buoys, floats, boat launching ramps, fills, water intakes, 
devices for discharging effluent, bridges, aerial cables, culverts, 
pipelines, and nonnavigable houseboats as defined in Sec. 1304.101. Any 
person considering constructing, operating, or maintaining any such 
structure on a stream in the Tennessee River Watershed should carefully 
review the regulations in this part and the 26a Applicant's Package 
before doing so. The regulations also apply to certain activities on 
land subject to TVA flowage easements. TVA uses and permits use of the 
lands and land rights in its custody alongside and subjacent to TVA 
reservoirs and exercises its land rights to carry out the purposes and 
policies of the Act. in addition, the National Environmental Policy Act 
of 1969, as amended (NEPA), 42 U.S.C. 4321 et seq. and the Federal 
Water Pollution Control Act Amendments of 1972, 33 U.S.C. 1251 et seq. 
(FWPCA), have declared it to be congressional policy that agencies 
should administer their statutory authorities so as to restore, 
preserve, and enhance the quality of the environment and should 
cooperate in the control of pollution. It is the intent of the 
regulations in this part 1304 to carry out the purposes of the Act and 
other statutes relating to these purposes, and this part shall be 
interpreted and applied to that end.


Sec. 1304.2  Application.

    (a) Applications shall be addressed to the Tennessee Valley 
Authority, Land Management Office, at one of the following locations:

(1) 17 Ridgeway Road, Norris, TN 37828, (865) 632-1691, Reservoir: 
Norris
(2) Suite 300, 804 Highway 321, North, Lenoir City, TN 37771-6440, 
(865) 988-2431, Reservoirs: Ft. Loudoun, Tellico, Fontana
(3) 221 Old Ranger Road, Murphy, NC 28906, (704) 837-0237, Reservoirs: 
Hiwassee, Chatuge, Appalachia, Blue Ridge Nottely, Ocoee
(4) 2611 W. Andrew Johnson Hwy., Morristown, TN 37814-3295, (865) 632-
2753, Reservoirs: Cherokee, Douglas
(5) Reservoir Road, P.O. Box 1010, Muscle Shoals, AL 35662-1010, (256) 
386-2564, Reservoirs: Wheeler, Wilson, Tims Ford, Great Falls
(6) 202 West Blythe Street, P.O. Box 280, Paris, TN 38242, (901) 642-
2041, Reservoirs: Kentucky, Beech River, Columbia, Normandy
(7) P.O. Box 1010, Muscle shoals, AL 35662-1010, (256) 386-3782, 
Reservoirs: Pickwick, Bear Creek
(8) Suite 218, Heritage Federal Bank Building, 4105 Fort Henry Drive, 
Kingsport, TN 37662, (423) 239-2001, Reservoirs: Boone, Watauga, 
Wilbur, Fort Patrick Henry, South Holston
(9) 4833 Highway 58, Chattanooga, TN 37416, (423) 954-3811, Reservoirs: 
Chickamauga, Nickajack
(10) 2009 Grubb Road, Lenoir City, TN 37771-6440, (865) 988-2445, 
Reservoirs: Watts Bar, Melton Hill
(11) 2325 Henry Street, Guntersville, AL 35976-1868, (256) 571-4283, 
Reservoirs: Guntersville


[[Page 56825]]


    (b) Submittal of Section 26a Application. Applicants must submit 
certain required information depending upon whether a proposed facility 
is a minor or major facility. Examples of the two categories are 
provided in paragraphs (b)(1) and (2) of this section. Most residential 
related facilities are minor facilities. Commercial or community 
facilities generally are major facilities. TVA shall determine whether 
a proposed facility is minor or major. An application shall not be 
complete until payment of the appropriate fee as determined in 
accordance with 18 CFR part 1310, and disclosed to the applicant in the 
materials provided with the application package or by such other means 
of disclosure as TVA shall from time to time adopt. For purposes of the 
information required to be submitted under this section and the 
determination of fees, a request for a variance to the size limitations 
for a residential-related facility shall be regarded as an application 
for a major facility.
    (1) Information required for review of minor facility. By way of 
example only, minor facilities may include: boat docks, piers, rafts, 
boathouses, fences, steps, gazebos, and shoreline-based shelters. One 
copy of the application shall be prepared and submitted in accordance 
with the instructions included in the section 26a Applicant's Package. 
The application shall include:
    (i) Completed application form. One (1) copy of the application 
shall be prepared and submitted. Application forms are available from 
TVA at the locations identified at the beginning of this section. The 
application shall include a project description which indicates what is 
to be built, removed, or modified, and the sequence of the work.
    (ii) Project, plan, or drawing. The project plan/drawing shall:
    (A) Be prepared on paper suitable for reproduction (8\1/2\ by 11 
inches);
    (B) Identify the kind of structure, purpose/intended use;
    (C) Show principal dimensions, size, and location in relation to 
shoreline;
    (D) Shoe the height of the structure above the water; and
    (E) Indicate the river or reservoir name, river mile, locator 
landmarks, and direction of water flow if known.
    (iii) A site photograph. The photograph shall be at least 3 by 5 
inches in size and show the location of the proposed shoreline 
structure or alteration and the adjacent shoreline area.
    (iv) Location map. The location map shall clearly show the location 
of the proposed facility and the extent of any site disturbance for the 
proposed project. An 8\1/2\ by 11-inch copy of one of the following is 
ideal: a TVA land map, a subdivision map, or a portion of a United 
States Geological Survey topographic map. The subdivision name and lot 
number and the map number or name shall be included, if available.
    (2) Information required for a major facility. One (1) copy of the 
application shall be prepared and submitted according to instructions 
included in the section 26a Applicant's Package. By way of example 
only, major projects and facilities may include: marinas, community 
docks, barge terminals, utility crossing, bridges, culverts, roads, 
wastewater discharges, water intakes, dredging, and placement of fill. 
The application shall include:
    (i) Completed application form. Application forms are available 
from TVA at the locations identified at the beginning of this section. 
The application shall include a narrative project description which 
indicates what is to be built, removed, or modified, and the sequence 
of the work.
    (ii) Project plan or drawing. Adequate project plans or drawings 
shall accompany the application. They shall:
    (A) Be prepared on paper suitable for reproduction (no lager than 
11 by 17 inches) or contained on a 3\1/2\-inch floppy disc in ``dxf'' 
format.
    (B) Contain the date; applicant name; stream; river or reservoir 
name; river mile; locator landmarks; and direction of water flow, if 
known;
    (C) Identify the kind of structure, purpose/intended use;
    (D) Include a plan and profile view of the structure;
    (E) Show principal dimensions, size, and location in relation to 
shoreline;
    (F) Show elevations (in context of normal summer pool if on a 
reservoir, or normal high water elevation above mean sea level if 
located on a free-flowing stream or river); and
    (G) Show the north arrow.
    (iii) Location map. The location map must clearly indicate the 
exact location and extent of site disturbance for the proposed project. 
An 8\1/2\ by 11-inch copy of the appropriate portion of a United States 
Geological Survey topographic map is recommended. The map number or 
name shall be included. In addition, recent photos of the location are 
helpful for TVA's review and may be included.
    (iv) Other information where applicable. The location of any 
material laydown or assembly areas, staging areas, equipment storage 
areas, new access roads, and road/access closure required by the 
project or needed for construction; the location of borrow or spoil 
areas on or off TVA land; the extent of soil and vegetative 
disturbance; and information on any special reservoir operations needed 
for the project, such as drawdown or water discharge restrictions.
    (v) Site plans. Some projects, particularly larger ones, may 
require a separate site plan which details existing and proposed 
changes to surface topography and elevations (cut and fill, clearing, 
etc.), location of all proposed facilities, and erosion control plans.
    (vi) Environmental consultations and permits. To the fullest extent 
possible the applicant shall obtain or apply for other required 
environmental permits and approvals before or at the same time as 
applying for section 26a approvals. Consultations under the National 
Historic Preservation Act of 1966 and the Endangered Species Act of 
1973 shall take place, and permits from the U.S. Army Corps of 
Engineers and State agencies for water or air regulation shall be 
obtained prior to or applications made at the same time as application 
for section 26a approval. The applicant shall provide TVA with copies 
of any such permits or approvals that are issued.
    (c) Discharges into navigable waters of the United States. If 
construction, maintenance, or operation of the proposed structure or 
any part thereof, or the conduct of the activity in connection with 
which approval is sought, may result in any discharge into navigable 
waters of the United States, applicant shall also submit with the 
application, in addition to the material required by paragraph (b) of 
this section, a certification from the State in which such discharge 
would originate, or, if appropriate, from the interstate water 
pollution control agency having jurisdiction over the navigable waters 
at the point where the discharge would originate, or from the 
Environmental Protection Agency, that such State or interstate agency 
or the Environmental Protection Agency has determined that there is 
reasonable assurance that applicant's proposed activity will be 
conducted in a manner which will not violate applicable water quality 
standards. The applicant shall further submit such supplemental and 
additional information as TVA may deem necessary for the review of the 
application, including, without limitation, information concerning the 
amounts, chemical makeup, temperature differentials, type and quantity 
of suspended solids, and proposed treatment plans for any proposed 
discharges.

[[Page 56826]]

Sec. 1304.3  Delegation of authority.

    The power to approve or disapprove applications under this part is 
delegated to the Vice President, Resource Stewardship, or the designee 
thereof, subject to appeal to the Board as provided in Sec. 1304.6. In 
his/her discretion, the Vice President may submit any application to 
the Board for its approval or disapproval. Administration of the 
handling of applications is delegated to Resource Stewardship


Sec. 1304.4  Application review and approval process.

    (a) TVA shall notify the U.S. Army Corps of Engineers (USACE) and 
other Federal agencies with jurisdiction of the application as 
appropriate.
    (b) Any interested person may become a party of record at any time 
before the Vice President's decision is issued (or the decision of the 
Board on matters referred by the Vice President) by writing to TVA at 
one of the locations identified in Sec. 1304.2.
    (c) Hearings concerning approval of applications are conducted (in 
accordance with Sec. 1304.5) when:
    (1) TVA deems a hearing is necessary or appropriate in determining 
any issue presented by the application;
    (2) A hearing is required under any applicable law or regulation;
    (3) A hearing is requested by the USACE pursuant to the TVA/Corps 
joint processing Memorandum of Understanding; or
    (4) An applicant or other party of record appeals the decision of 
the Vice President in accordance with the provisions of Sec. 1304, and 
any party of record requests or the TVA Investigator directs that a 
hearing be held.
    (d) Upon completion of the review of the application, including any 
hearing or hearings, the Vice President shall issue a decision 
approving or disapproving the application. The basis for the decision 
shall be set forth in the decision. In his discretion the Vice 
President may refer any application and supporting materials to the 
Board for its approval or disapproval.
    (e) Promptly following the issuance of the decision, the Vice 
President or the Board, as the case may be, shall furnish a written 
copy thereof to the applicant and to any parties of record. The Vice 
President's decision shall become final unless an appeal is made 
pursuant to Sec. 1304.6. Any decision by the Board on a matter referred 
by the Vice President shall be a final decision.


Sec. 1304.5  Conduct of hearings.

    (a) If a hearing is to be held for any of the reasons described in 
Sec. 1304.4(c), TVA shall give notice of the hearing to interested 
persons. Such notice may be given by publication in the Federal 
Register, publication in a daily newspaper of general circulation in 
the area of the proposed structure, personal written notice, posting on 
TVA's Internet website, or by any other method reasonably calculated to 
come to the attention of interested persons. The notice shall indicate 
the place, date, and time of hearing (to the extent feasible), the 
particular issues to which the hearing will pertain, and the manner of 
becoming a party of record, and shall provide other pertinent 
information as appropriate. The applicant shall automatically be a 
party of record.
    (b) Hearings may be conducted by the Vice President and/or such 
other person or persons as may be designated by the Vice President or 
the Board for that purpose. Hearings are public and are conducted in an 
informal manner. Parties or record may be represented by counsel or 
other persons of their choosing. Technical rules of evidence are not 
observed although reasonable bounds are maintained as a relevancy, 
materiality, and competency. Evidence may be presented orally or by 
written statement and need not be under oath. Cross-examination of 
witnesses or others providing statements or testifying at a hearing 
shall not be allowed. After the hearing has been completed, additional 
evidence will not be received unless it presents new and material 
matter that in the judgment of the person or persons conducting the 
hearing could not be presented at the hearing. Where construction of 
the project also requires the approval of another agency of the Federal 
Government by or before whom a hearing is to be held, the Vice 
President may arrange with such agency to hold a joint hearing.


Sec. 1304.6  Appeals.

    (a) Decisions approving or disapproving an application may be 
appealed as provided in this section. Decisions by the Vice President's 
designee shall be reviewed by the Vice President; decisions by the Vice 
President shall be reviewed by the Board.
    (b) If a designee of the Vice President disapproves an application 
or approves it with terms and conditions deemed unacceptable by the 
applicant, the applicant may, by written request addressed to the Vice 
President, Resource Stewardship, Tennessee Valley Authority, P.O. Box 
1589, 17 Ridgeway Road, Norris, TN 37828-1589, and mailed within thirty 
(30) days after receipt of the decision, obtain review of the decision 
by the Vice President. If the Vice President, either initially or as 
the result of an appeal, disapproves an application or approves it with 
terms and conditions deemed unacceptable by the applicant, the 
applicant may, by written request addressed to the Board of Directors, 
Tennessee Valley Authority, 400 W. Summit Hill Drive, Knoxville, TN 
37902, and mailed within thirty (30) days after receipt of the 
decision, obtain review of the decision by the Board. In either event, 
the request must contain a signed representation that a copy of the 
written request for review was mailed to each party of record at the 
same time as it was mailed to TVA. A decision by the Vice President is 
a prerequisite for seeking Board review. There shall be no 
administrative appeal of a Board decision approving or disapproving an 
application.
    (c) A party of record who is aggrieved or adversely affected by any 
decision approving an application may obtain review by the Board or by 
the Vice President, as appropriate, of such decision by written request 
prepared, addressed and mailed as provided in paragraph (b) of this 
section.
    (d) Requests for review by the Vice President shall specify the 
reasons why it is contended that the determination of the Vice 
President's designee is in error.
    (e) The applicant or other person requesting review and any party 
of record may submit additional written material in support of their 
positions to the Vice President within thirty (30) days after receipt 
by TVA of the request for review. Following receipt of a request for 
review, the Vice President will conduct such review as he or she deems 
appropriate. If additional information is required of the applicant or 
other person requesting the review, the Vice President shall allow for 
at least thirty (30) days in which to provide the additional 
information. At the conclusion of the review, the Vice President shall 
render his or her decision approving or disapproving the application.
    (f) Requests for review by the Board shall specify the reasons why 
it is contended that the Vice President's determination is in error and 
indicate whether a hearing is requested.
    (g) The applicant or other person requesting review and any party 
of record may submit additional written material in support of their 
positions to the Board within thirty (30) days after receipt by TVA of 
the request for review. Following receipt of a request for review, the 
Board will review the material on which the Vice President's decision 
was based and any additional

[[Page 56827]]

information submitted by any party of record, or a summary thereof, and 
may conduct or cause to be conducted such investigation of the 
application as the Board deems necessary or desirable. In the event the 
Board decides to conduct an investigation, it shall appoint an 
Investigating Officer. The Investigating Officer may be a TVA employee, 
including a TVA Resource Stewardship employee, or a person under 
contract to TVA, and shall not have been directly and substantially 
involved in the decision being appealed. The Investigating Officer 
shall be the hearing officer for any hearing held during the appeal 
process. At the conclusion of his or her investigation, the 
Investigating Officer shall summarize the results of the investigation 
in a written report to the Board. The report shall be provided to all 
parties of record and made part of the public record. Based on the 
review, investigation, and written submissions provided for in this 
paragraph, the Board shall render its decision approving or 
disapproving the application.
    (h) A written copy of the decision in any review proceeding under 
this section, either by the Vice President or by the Board, shall be 
furnished to the applicant and to all parties of record promptly 
following determination of the matter.


Sec. 1304.7  Conditions of approvals.

    Approvals of applications shall contain such conditions as are 
required by law and may contain such other general and special 
conditions as TVA deems necessary or desirable.


Sec. 1304.8  Denials.

    TVA may, at its sole discretion, deny any application to construct, 
operate, conduct, or maintain any obstruction, structure, facility, or 
activity that in TVA's judgment would be contrary to the unified 
development and regulation of the Tennessee River system, would 
adversely affect navigation, flood control, public lands or 
reservations, the environment or sensitive resources (including, 
without limitation, federally listed threatened or endangered species, 
high priority State-listed species, wetlands with high function and 
value, archaeological or historical sites of national significance, and 
other sites or locations identified in TVA Reservoir Land Management 
Plans as requiring protection of the environment), or would be 
inconsistent with TVA's Shoreline Management Initiative. In lieu of 
denial, TVA may require mitigation measures where, in TVA's sole 
judgment, such measures would adequately protect against adverse 
effects.


Sec. 1304.9  Initiation of construction.

    A permit issued pursuant to this part shall expire unless the 
applicant initiates construction within eighteen (18) months after the 
date of issuance.


Sec. 1304.10  Change in ownership of approved structures.

    (a) When ownership of a permitted structure changes, the new owner 
shall notify TVA within sixty (60) days of the change of ownership. 
Upon application to TVA by the new owner, a permit for those existing 
structures or alterations shall be reissued to the new owner.
    (b) The new owner and any subsequent owners may, upon application 
for and receipt of a permit, continue to use existing permitted 
structures.
    (c) Subsequent owners are not required to modify existing 
structures constructed and maintained in accordance with the standards 
in effect at the time the permit was first issued provided they:
    (1) Maintain such structures in good repair; and
    (2) Obtain TVA approval for any repairs that would alter the size 
of the facility or for any new construction.


Sec. 1304.11  Little Tennessee River; date of formal submission

    As regards structures on the Little Tennessee River, applications 
are deemed by TVA to be formally submitted within the meaning of 
section 26a of the Act, on that date upon which applicant has complied 
in good faith with all applicable provisions of Sec. 1304.2.

Subpart B--Regulation of Nonnavigable Houseboats


Sec. 1304.100  Scope and intent.

    This subpart prescribes regulations governing existing nonnavigable 
houseboats that are moored, anchored, or installed in the Tennessee 
River system or its tributaries. No new nonnavigable houseboats shall 
be moored, anchored, or installed in any portion of the Tennessee River 
system or its tributaries.


Sec. 1304.101  Nonnavigable houseboats

    (a) Any houseboat failing to comply with the following criteria 
shall be deemed a non-navigable houseboat and may not be moored, 
anchored, installed, or operated on any part of the Tennessee River 
System or its tributaries except as provided in paragraph (b) of this 
section:
    (1) Built on a boat hull or on two or more pontoons;
    (2) Equipped with a motor and rudder controls located at a point on 
the houseboat from which there is forward visibility over a 180-degree 
range;
    (3) Complaint with all applicable State and Federal requirements 
relating to vessels;
    (4) Registered as a vessel in the State of principal use; and
    (5) State registration numbers clearly displayed on the vessel.
    (b) Nonnavigable houseboats approved by TVA prior to [the effective 
date of the final rule] shall be deemed existing houseboats and may 
remain on TVA reservoirs provided they remain in compliance with the 
rules contained in this part. Such houseboats shall be moored to 
mooring facilities contained within the designated and approved harbor 
limits of a commercial marina. Alternatively, provided the owner has 
obtained written approval from TVA pursuant to subpart A of this part 
authorizing mooring at such location, nonnavigable houseboats may be 
moored to the bank of the reservoir at locations where the owner of the 
houseboat is the owner or lessee (or the licensee of such owner or 
lessee) of the shoreline land, and at locations described by 
Sec. 1304.201(a)(1), (2) and (3). All nonnavigable houseboats must be 
moored in such a manner as to:
    (1) Avoid obstruction of or interference with navigation, flood 
control, public lands or reservations;
    (2) Avoid adverse effects on public lands or reservations;
    (3) Prevent the preemption of public waters when moored in 
permanent locations outside of the approved harbor limits of commercial 
marinas;
    (4) Protect land and landrights owned by the United States 
alongside and subjacent to TVA reservoirs from trespass and other 
unlawful and unreasonable users; and
    (5) Maintain, protect, and enhance the quality of the human 
environment.
    (c) All approved nonnavigable houseboats must be equipped as 
follows with properly installed and operating Marine Sanitation Devise 
(MSD) or Sewage Holding Tanks and pumpout capability:
    (1) Nonnavigable houseboats moored on ``Discharge Lakes'' must be 
equipped with a Type I or Type II MSD.
    (2) Nonnavigable houseboats moored in: ``No Discharge Lakes'' must 
be equipped with holding tanks and pumpout capability. If a 
nonnavigable houseboat moored in a ``No Discharge Lake'' is equipped 
with a Type I or Type II MSD, it must be secured to prevent discharge 
into the lake.
    (d) Approved nonnavigable houseboats shall be maintained in a

[[Page 56828]]

good state of repair. Such houseboats may be structurally repaired or 
rebuilt without additional approval from TVA, but any expansion in 
length, width, or height is prohibited except as approved in writing by 
TVA.
    (e) All nonnavigable houseboats shall comply with the requirements 
for flotation devices contained in Sec. 1304.401.
    (f) Applications for mooring of a nonnavigable houseboat outside of 
designated harbor limits will be disapproved if TVA determines that the 
proposed mooring location would be contrary to the intent of this 
subpart.


Sec. 1304.12  Numbering of nonnavigable houseboats and transfer of 
ownership.

    (a) All approved nonnavigable houseboats shall display a number 
assigned by TVA. The owner of the nonnavigable houseboat shall paint or 
attach a facsimile of the number on a readily visible part of the 
outside of the facility in letters at least 3 inches high.
    (b) The transferee of any nonnavigable houseboat approved pursuant 
to the regulations in this subpart shall, within thirty (30) days of 
the transfer transaction, report the transfer to TVA.
    (c) A nonnavigable houseboat moored at a location approved pursuant 
to the regulations in this subpart shall not be relocated and moored at 
a different location without prior approval by TVA, except for movement 
to new locations to or between mooring facilities within the designated 
harbor limits of a commercial dock or marina.


Sec. 1304.103  Approval of plans for structural modifications or 
rebuilding of approved nonnavigable houseboats.

    Plans for the structural modification, or rebuilding of an approved 
nonnavigable houseboat shall be submitted to TVA for review and 
approval in advance of any structural modification which would increase 
the length, width, height, or flotation of the structure.

Subpart C--TVA Owned Residential Access Shoreland


Sec. 1304.200  Scope and intent.

    Subpart C applies to residential water-use facilities, specifically 
the construction of docks, piers, boathouses (fixed and floating), 
retaining walls, and other structures and alterations, including 
channel excavation and vegetation management, on or along TVA-owned 
residential access shoreland. TVA manages the TVA-owned residential 
access shoreland to conserve, protect, and enhance shoreland resources, 
while providing reasonable access to the water of the lake by 
qualifying adjacent residents.


Sec. 1304.201  Applicability.

    This subpart addresses residential-related (all private, 
noncommercial uses) shoreland construction activities along and across 
shoreland property owned by the United States and under the custody and 
control of TVA. Individual residential landowners wishing to construct 
shoreline facilities, clear vegetation and/or maintain an access 
corridor on adjacent TVA-owned lands are required to apply for and 
obtain a permit from TVA before conducting any such activities.
    (a) This subpart applies to the following TVA-reservoir shoreline 
classifications:
    (1) TVA-owned shorelands over which the adjacent residential 
landowner holds rights of ingress and egress to the water (except where 
TVA's deeded rights exclude a particular activity);
    (2) TVA-owned shorelands designated in current TVA Reservoir Land 
Management Plans as open for consideration of residential shoreline 
development; and
    (3) On reservoirs not having a current approved TVA Reservoir Land 
Management Plan at the time of application, TVA-owned shorelines 
designated in TVA's property forecast system as ``reservoir operations 
property,'' identified in a subdivision plan recorded prior to 
September 24, 1992, and containing at least one water-use facility 
developed prior to September 24, 1992.
    (b) Construction of residential shoreline structures, access 
corridors, and vegetation management activities by owners of adjacent 
upland residential property shall not be allowed on any TVA-owned lands 
other than those described in one or more of the classifications 
identified in paragraph (a) of this section.
    (c) Flowage easement shoreland. Except as otherwise specifically 
provided in subpart D of this part, subpart C does not apply to 
shorelines where TVA's property interest of ownership of a flowage 
easement. The terms of the particular flowage easement and subparts A, 
B, D and E of this part govern the use of such property.


Sec. 1304.202  General sediment and erosion control provisions.

    (a) During shoreline construction activities TVA shall require that 
appropriate erosion and sediment control measures be utilized to 
prevent pollution of the waters of the reservoir.
    (b) All material which accumulates behind sediment control 
structures must be removed from TVA land and placed at an upland site 
above the 100-year floodplain elevation or the Flood Risk Profile 
Elevation (whichever is applicable).
    (c) Disturbed sites must be promptly stabilized with seeding, 
vegetative planting, erosion control netting, and/or mulch material.


Sec. 1304.203  Vegetation management.

    No vegetation management shall be approved on TVA-owned Residential 
Access Shoreline until a Vegetation Management Plan meeting the 
vegetation management standards contained in this section is submitted 
to and approved by TVA.
    (a) Except for the moving of lawns established and existing before 
[the effective date of the final rule], all vegetation management 
activities on TVA-owned property subject to this subpart (including all 
such activities described in paragraphs (b) through (m) of this section 
as ``allowed'' and all activities undertaken in connection with a 
section 26a permit obtained before [the effective date of the final 
rule]) require TVA's advance written permission. Special site 
circumstances such as the presence of wetlands may result in a 
requirement for mitigative measures or alternative vegetation 
management approaches.
    (b) Vegetation may be cleared to create and maintain an access 
corridor up to but not exceeding 20 feet wide. The corridor will extend 
from the common boundary between TVA and the adjacent landowner to the 
water at normal summer pool.
    (c) The access corridor will be located to minimize removal of 
trees of other vegetation on the TVA land.
    (d) Grass may be planted and mowed within the access corridor, and 
stone, brick, concrete, mulch, or wooden paths, walkways and/or steps 
are allowed. Pruning of side limbs that extend into the access corridor 
from trees located outside the access corridor is allowed.
    (e) A 50-foot-deep shoreline management zone (SMZ) shall be 
designated along the shoreline. The SMZ shall begin at the normal 
summer pool elevation and extend 50 feet horizontally inland on TVA 
property or a lesser distance coincidental with TVA ownership. Within 
the SMZ, no trees may be cut or vegetation removed, except that which 
is preapproved by TVA within the access corridor.
    (f) Within the 50-foot SMZ and elsewhere on TVA land as defined in 
Sec. 1304.201, clearing of specified understory plants (poison ivy, 
Japanese honeysuckle, kudzu, and other exotic

[[Page 56829]]

plants on a list provided by TVA) is allowed.
    (g) On TVA land situated above the SMZ (more than 50 feet upland 
from normal summer pool), selective thinning of trees or other 
vegetation under 3 inches in diameter at the ground level is allowed.
    (h) Removal of trees outside of the access corridor but within the 
SMZ may be approved to make the site suitable for approved shoreline 
erosion control projects.
    (i) Vegetation removed for erosion control projects must be 
replaced with native species of vegetation.
    (j) The forest floor must be left undisturbed, except as specified 
in this Sec. 1304.203. Mowing is allowed only within the access border.
    (k) Planting of trees, shrubs, wildflowers, and ground covers is 
allowed to improve or enhance the vegetative cover, provided native 
plants are used.
    (l) Fertilizers and herbicides shall not be applied within the SMZ 
or elsewhere on TVA land, except as specifically approved in the 
Vegetative Management Plan.
    (m) Restricted use herbicides and pesticides shall not be applied 
within the shoreline management zone except by a State certified 
applicator. All herbicides and pesticides shall be applied in 
accordance with label requirements.


Sec. 1304.204  Docks, piers, and boathouses.

    Applicants are responsible for submitting plans for proposed docks, 
piers, and boathouses that conform to the standards that define the 
size of water-use facility that will be approved by TVA. Where and if 
site constraints at the proposed construction location preclude the 
building of a maximum approvable-sized structure, TVA shall determine 
the size of facility that may be approved. Applicants are required to 
submit accurate drawings with dimensions of all proposed facilities.
    (a) Docks, piers, boathouses, and all other resident water-use 
facilities shall not exceed a total footprint area of greater than 1000 
square feet.
    (b) Docks, boatslips, piers, and fixed or floating boathouses are 
allowable. These and other water-use facilities associated with a lot 
must be sited within a 1000-square-foot rectangular or square area at 
the lakeward end of the access walk away that extends from the shore to 
the structure. Walkways from shoreline to the water-use structure are 
not included in calculating the 1000-foot area.
    (c) Docks and walkway(s) shall not extend more than 150 feet from 
the shoreline, or more than one-third the distance to the opposite 
shoreline, whichever is less.
    (d) All fixed piers and docks shall have deck elevations at least 
18 inches above normal summer pool level (facilities on Chickamauga, 
Watts Bar, Fort Loudoun, and Tellico, shall be a minimum of 24 inches 
above normal summer pool).
    (e) All docks, piers and other water-use facilities must be 
attached to the shore with a walkway which must connect from land to 
the structure by the most direct route and must adjoin the access 
corridor.
    (f) Docks, piers, and boathouses may be fixed or floating or a 
combination of the two types.
    (g) Roofs are allowed on boatslips, except on Kentucky Reservoir 
where roofs are not allowed on fixed structures due to extreme water 
level fluctuations. Roofs over docks or pier to provide shade are 
allowed on all reservoirs.
    (h) Docks proposed in subdivisions recorded after [the effective 
date of the final rule] must be placed at least 50 feet from the 
neighbor's docks. When this density requirement cannot be met, TVA may 
require group or community facilities.
    (i) Covered boatslips may be open or enclosed with siding.
    (j) Access walkways constructed over water and internal walkways 
inside of boathouses shall not exceed 6 feet in width.
    (k) Enclosed space shall be used solely for storage of water-use 
equipment. The outside deminsions of any completely enclosed storage 
space shall not exceed 32 square feet and must be located on an 
approved dock, pier, or boathouse, not on TVA land.
    (l) Docks, piers, and boathouses shall not contain living space or 
sleeping areas. Floor space shall not be considered enclosed if three 
of the four walls are constructed of wire or screen mesh from floor to 
ceiling, and the wire or screen mesh leaves the interior of the 
structure open to the weather.
    (m) Toilets or sinks creating discharges into the lake are not 
permitted.
    (n) Covered docks, boatslips, and boathouses shall not exceed one 
story in height.
    (o) Second stories on covered docks, piers, boatslips, or 
boathouses may be constructed as open decks with railing but shall not 
be enclosed with siding, screening, or covered by a roof.


Sec. 1304.205  Other water-use facilities.

    (a) A marine railway or concrete boat launching ramp with 
associated driveway may be located within the access corridors. 
Construction must occur during reservoir drawdown. Excavated material 
must be placed at an upland site. Use of concrete is allowable; asphalt 
is not permitted.
    (b) Tables or benches for cleaning fish are permitted on docks or 
piers.
    (c) All anchoring cables or spud poles must be anchored to the 
walkway or to the ground in a way that will not accelerate shoreline 
erosion. Anchoring of cables, chains, or poles to trees on TVA property 
is not permitted.
    (d) Electrical appliances, including stoves, refrigerators, 
freezers, and microwave ovens are not permitted on docks, piers, or 
boathouses.
    (e) Mooring buoys/posts may be permitted in association with docks, 
piers, and boathouses provided the following requirements are met.
    (1) Posts and buoys shall not extend farther into the lake than the 
associated waterfront structure.
    (2) Posts must be 36 inches in height above the 100-year-flood 
elevation.
    (3) Buoys must conform to the Uniform State Waterway Marking 
system.
    (f) Where the applicant owns or controls less than 50 feet of 
property adjoining TVA shoreline, the overall width of the facilities 
permitted along the shore shall be limited to ensure sufficient space 
to accommodate other property owners.
    (g) Structures shall not be wider than the width of the lot.
    (h) In congested areas, TVA may establish special permit conditions 
requiring dry-docking of floating structures when a lake reaches a 
specific drawdown elevation to prevent these structures from 
interfering with navigation traffic, recreational boating access, or 
adjacent structures during winter drawdown.


Sec. 1304.206  Requirements for community dock, pier, boathouse, or 
other water-use facilities.

    (a) Community facilities where individual facilities are not 
allowed:
    (1) TVA may limit water-use facilities to community facilities 
where physical or environmental constraints on the shoreline preclude 
approval of individual docks priers or boathouses.
    (2) When individual water-use facilities are not allowed, no more 
than one slip for each lot adjoining the TVA shoreland will be approved 
for any community facility.
    (3) In narrow coves or other situations where shoreline frontage is 
limited, shoreline development may be limited to one landing dock for 
temporary moorage of boats not to exceed the 1000-square-foot footprint 
requirement, and/

[[Page 56830]]

or a boat launching ramp, if the site, in TVA's judgment, will 
accommodate such development.
    (4) TVA will establish harbor limits for all community facilities 
exceeding 1000 square feet.
    (b) Community facilities at jointly-owned community outlots:
    (1) Plans for community facilities must be submitted by the 
developer of the subdivision or by a State-chartered homeowner's 
association representing all persons with a property interest in the 
community lot where the facilities are proposed.
    (2) Size and number of slips at community water-use facilities lots 
shall be determined by TVA with consideration of the following:
    (i) Size of community outlot;
    (ii) Parking accommodations on the community outlot;
    (iii) Length of shoreline frontage associated with the community 
outlot;
    (iv) Number of property owners with access rights to the community 
outlot; and
    (v) Other site specific conditions as determined by TVA.
    (3) Vegetation management shall be in accordance with the 
requirements of Sec. 1304.203 except that, at TVA's discretion, the 
community access corridor may exceed 20 feet in width, and thinning of 
vegetation outside of the corridor within or beyond the SMZ may be 
allowed to enhance views of the lake.


Sec. 1304.207  Channel excavation on TVA-owned residential access 
shoreland.

    (a) Excavation of individual boat channels shall be approved only 
when TVA determines there is no other practicable alternative to 
achieving sufficient navigable water depth and the action would not 
substantially impact sensitive resources.
    (b) No more than 150 cubic yards of material shall be removed for 
any individual boat channel.
    (c) The length, width, and depth of approved boat channels shall 
not exceed the dimensions necessary to achieve 3-foot water depths for 
navigation of the vessel at the minimum winter drawdown elevation.
    (d) Each side of the channel shall have a slope ratio of at least 
3:1.
    (e) Only one boat channel or harbor may be considered for each 
abutting property owner.
    (f) The grade of the channel must allow drainage of water during 
lake drawdown periods.
    (g) Channel excavations must be accomplished during the lake 
drawdown when the lake bottom is exposed and dry.
    (h) Spoil material from channel excavations must be placed on 
accordance with any applicable local, State, and Federal regulations at 
an upland site above the TVA Flood Risk Profile elevation. For those 
reservoirs that have no flood control storage, dredge spoil must be 
disposed of and stabilized above the limits of the 100-year floodplain 
and off of TVA property.


Sec. 1304.208  Shoreline stabilization.

    TVA may allow homeowners to stabilize eroding shorelines. TVA will 
determine if shoreline erosion is sufficient to approve the proposed 
stabilization treatment.
    (a) Biostabilization of eroded shorelines.
    (1) Moderate contouring of the bank may be allowed to provide 
conditions suitable for planting of vegetation.
    (2) Tightly bound bundles of coconut fiber, logs, or other natural 
materials would be placed at the base of the eroded site to deflect 
waves.
    (3) Willow stakes and bundles and live cuttings of suitable native 
plant materials may be planted along the surface of the eroded area.
    (4) Native vegetation may be planted within the shoreline 
management zone to help minimize further erosion.
    (5) Riprap may be allowed along the base of the eroded area to 
prevent further undercutting of the bank.
    (b) Use of gabions and riprap to stabilize eroded shorelines.
    (1) The riprap material must be quarry-run stone, natural stone, or 
other material approved by TVA.
    (2) Rubber tires, concrete rubble, or other debris salvaged from 
construction sites shall not be used to stabilize shorelines.
    (3) Gabions (rock wrapped with wire mesh) that are commercially 
manufactured for erosion control may be used.
    (4) Riprap material must be placed so as to follow the existing 
contour of the bank.
    (5) Site preparation must be limited to the work necessary to 
obtain adequate slope and stability of the riprap material.
    (c) Use of retaining walls for shoreline stabilization.
    (1) Retaining walls shall be allowed only where the erosion process 
is severe and TVA determines that a retaining wall is the most 
effective erosion control option or where the proposed wall would 
connect to an existing wall on the lot or to an adjacent owner's wall.
    (2) The retaining wall must be constructed of stone, concrete 
blocks, poured concrete, gabions, or other materials acceptable to TVA. 
Railroad ties, rubber tires, broken concrete, brick, creosote timbers, 
and asphalt are not allowed.
    (3) Reclamation of land that has been lost to erosion is not 
allowed.
    (4) The base of the retaining wall shall not be located more than 
an average of two horizontal feet lakeward of the existing normal 
summer pool elevation. Riprap shall be placed at least two feet in 
depth along the footer of the retaining wall to deflect wave action and 
reduce undercutting that could eventually damage the retaining wall.


Sec. 1304.209  Fish attractor, spawning, and habitat structures.

    Fish attractors constitute potential obstructions and require TVA 
approval.
    (a) Fish attractors may be constructed of anchored brush piles, log 
cribs, and/or spawning benches, stake beds, vegetation, or rock piles, 
provided they meet TVA Guidelines for fish Attractor Placement in TVA 
Reservoirs (TVA, 1997).
    (b) When established in connection with an approved dock, fish 
attractors shall not project more than 30 feet out from any portion of 
the dock.
    (c) Any floatable materials must be permanently anchored.


Sec. 1304.210  Land-based structures/alternations.

    (a) Except for steps, pathways, boat launching ramps, marine 
railways located in the access corridor, bank stabilization along the 
shoreline, and other uses described in this subpart, no permanent 
structures, fills or grading shall be allowed on TVA land.
    (b) Portable items such as picnic tables and hammocks may be placed 
on TVA land; permanent land-based structures such as picnic pavilions, 
gazebos, satellite antennas, septic tanks, and drainfields shall not be 
allowed on TVA land.
    (c) Utility lines (electric, water-intake lines, etc.) may be 
placed within the access corridor as follows:
    (1) Power lines and poles must be installed:
    (i) Above normal summer pool;
    (ii) In a way that would not be hazardous to the public or 
interfere with TVA operations;
    (iii) Solely to serve water-use facilities, and
    (iv) In compliance with all State and local codes.
    (2) Electrical service must be installed with an electrical 
disconnect that is:
    (i) Located above the 500-year floodplain or the flood risk 
profile, whichever is higher, and
    (ii) Is accessible during flood events.
    (d) Fences crossing TVA residential access shoreland may be 
considered only where outstanding agricultural rights or fencing rights 
exist and the

[[Page 56831]]

land is used for agricultural purposes. Fences much have a built-in 
means for easy pedestrian passage by the public and they must be 
clearly marked.


Sec. 1304.211  Grandfathering of preexisting shoreline uses and 
structures.

    In order to provide for a smooth transition to new standards, 
grandfathering provisions shall apply to preexisting development and 
shoreline uses established and permitted prior to November 1, 1999, 
which are located along or adjoin TVA-owned access residential 
shoreland or TVA flowage easement shoreline.
    (a) Existing shoreline structures (docks, retaining walls, etc.) 
previously permitted by TVA are grandfathered.
    (b) Grandfathered structures may continue to be maintained in 
accordance with previous permit requirements, and TVA does not require 
modification to conform to new standards.
    (c) If a structure is destroyed by fire or storms, the permit shall 
be reissued if the replacement facility is rebuilt to specifications 
originally permitted by TVA.
    (d) Vegetation management at grandfathered developments shall be as 
follows:
    (1) Mowing of established preexisting lawns on TVA-owned 
residential access shoreland may be continued.
    (2) At sites where established mowing is not specifically included 
as an authorized use in an existing permit, TVA will include mowing as 
a permitted use in the next permit action at that site.
    (3) The SMZ is not required where established lawns existed prior 
to November 1, 1999.
    (4) Any additional removal of trees or other vegetation (except for 
mowing of established, preexisting lawns) requires TVA's approval. 
Removal of trees greater than 3 inches diameter at ground level is not 
allowed.


Sec. 1304.212  Change in ownership of grandfathered structures or 
alterations.

    (a) When ownership of a permitted structure or other shoreline 
alteration changes, the new owner shall comply with 1304.10 regarding 
notice to TVA.
    (b) The new owner and any subsequent owners may, upon application 
for and receipt of a permit, continue to use existing permitted docks 
and other shoreline alterations.
    (c) Subsequent owners are not required to modify existing prior to 
November 1, 1999.
    (d) New owners wishing to continue existing grandfathered 
activities and structures must:
    (1) Maintain existing permitted docks, piers, boathouses, and other 
shoreline structure in good repair.
    (2) Obtain TVA approval for any repairs that would alter the size 
of the facility, for any new construction, or for removal of trees or 
other vegetation.


Sec. 1304.213  Waivers on TVA-owned residential access shoreland.

    (a) Waivers or variances of standards contained in this subpart may 
be requested as provided in Sec. 1304.409. Ordinarily, the following 
minimum criteria must be established before a request for waiver or 
variance of standards in this subpart C shall be considered:
    (1) The property shall be within a preexisting development (an area 
where shoreline development existed prior to [the effective date of the 
final rule]); and
    (2) The shoreline proposed alterations shall be compatible with 
surrounding permitted structures and uses within the subdivision or, if 
there is no subdivision, within the immediate vicinity (one-fourth mile 
radius).
    (b) In approving waivers of or variances from the standards in 
subpart D of this part, TVA will consider, in addition to the factors 
listed in Sec. 1304.409, the following:
    (1) The prevailing permitted practices within the subdivision or 
immediate vicinity; and
    (2) The uses permitted under the guidelines followed by TVA before 
[the effective date of the final rule].


Sec. 1304.214  Numbering of structures.

    (a) All approved shoreline structures shall display a permit number 
assigned by TVA. The owner of the structure shall attach the number to 
the structure in a readily visible location on the lakeward facing side 
of the structure.
    (b) Numbers shall be attached within ten (10) days of the 
completion of the structure.
    (c) During construction, each structure will display a temporary 
poster with permit number supplied by TVA.

Subpart D--Activities on TVA Flowage Easement Shoreline


Sec. 1304.300  Scope and intent.

    Any structure built upon land subject to a flowage easement held by 
TVA shall be deemed an obstruction affecting navigation, flood control, 
or public lands or reservations within the meaning of section 26a of 
the Act. Such obstructions shall be subject to all requirements of this 
part except those contained in subpart C, which shall apply as follows:
    (a) All of Secs. 1304.204, 1304.209, and 1304.212 shall apply,
    (b) Sections 1304.200, 1304.203, 1304.206, 1304.207 (except to the 
extent it creates an obstruction), 1304.210, and 1304.213 shall not 
apply.
    (c) Section 1304.201 shall not apply except for paragraph (c).
    (d) Section 1304.202 shall apply except that TVA shall determine on 
a case-by-case basis whether it is necessary to remove materials 
accumulated behind sediment control structures to an upland site.
    (e) Section 1304.205 shall apply except as follows:
    (1) The facilities described in paragraph (a) are not limited to 
locations within an access corridor.
    (2) The ``50 feet'' trigger of paragraph (f) shall not apply, but 
TVA may impose appropriate requirements to ensure accommodation of 
neighboring landowners.
    (f) Section 1304.208 shall apply except that TVA approval shall not 
be required to conduct the activities described in paragraph (a).
    (g) Section 1304.211 shall apply except for paragraph (d).
    (h) Nothing contained in this part shall be construed to be in 
derogation of the rights of the United States or of TVA under any 
flowage easement held by the United States or TVA.


Sec. 1304.301  Septic tanks.

    All septic tanks and septic tank systems to be installed on flowage 
easement land after [the effective date of the final rule] are subject 
to the application and permit requirements of this part without regard 
to whether the associated facility or facilities are regulated, and 
shall comply with Sec. 1304.403(b) (1) and (2). TVA may exercise its 
rights under particular flowage easement documents to deny permission 
to install any septic tank or septic tank system that, in TVA's 
judgment, would pose a threat of pollution.


Sec. 1304.302  Utilities.

    Upon application to and approval by TVA, utility lines (electric, 
water-intake lines, etc.) may be placed within the flowage easement 
area as follows:
    (a) Power lines and poles shall be installed:
    (1) Above normal summer pool;
    (2) In a way that would not be hazardous to the public or interfere 
with TVA operations; and
    (3) In compliance with all State and local codes.
    (b) Electrical service shall be installed with an electrical 
disconnect that is located above the 500-year floodplain or

[[Page 56832]]

the flood risk profile, whichever is higher, and is accessible during 
flood events.


Sec. 1304.303  Vegetation management on flowage easement shoreline.

    Removal, modification, or establishment of vegetation on privately 
owned shoreline subject to a TVA flowage easements does not require 
approval by TVA. When reviewing proposals for docks or other 
obstructions on flowage easement shoreland, TVA shall consider the 
potential for impacts to sensitive plants or other resources and may 
establish conditions in its approval of a proposal to avoid or minimize 
such impacts consistent with applicable laws and executive orders.


Sec. 1304.304  Channel excavation.

    (a) Channel excavation of privately owned lake bottom subject to a 
TVA flowage easement does not require approval by TVA under section 26a 
if:
    (1) All dredged material is placed above the limits of the 100-year 
floodplain or the TVA flood risk profile elevation, whichever is 
applicable, and
    (2) The dredging is not being accomplished in conjunction with the 
construction of a shoreline or water-based structure requiring a 
section 26a permit.
    (b) Any fill material placed within the flood control zone of a TVA 
reservoir requires TVA review and approval.
    (c) TVA shall encourage owners of flowage easement property to 
adopt the standards for channel excavation applicable to TVA-owned 
residential access shoreland.

Subpart E--Miscellaneous


Sec. 1304.400  Definitions.

    Except as the context may otherwise require, the following words or 
terms, when used in this part 1304, have the meaning specified in this 
section.
    100-year floodplain means that area inundated by the one percent 
annual chance (or 100-year) flood.
    500-year floodplain means an area inundated by the 0.2 percent 
annual chance (or 500-year) flood; any land susceptible to inundation 
during the 500-year or greater flood.
    Act means the Tennessee Valley Authority Act of 1933, as amended. 
Section 26a of the Act is reprinted in Appendix A to this part as a 
convenience to the reader.
    Applicant means the person, corporation, State, municipality, 
political subdivision or other entity making application to TVA.
    Application means a written request for the approval of plans 
pursuant to the regulations contained in this part.
    Backlot means a residential lot not located adjacent to the 
shoreline but located in a subdivision associated with the shoreline.
    Board means the Board of Directors of TVA.
    Community outlot means a subdivision lot located adjacent to the 
shoreline and designated by deed or subdivision convenant as available 
for use by all property owners within the subdivision.
    Dredging means the removal of material from a submerged location, 
primarily for deepening harbors and waterways.
    Enclosed structure means a structure enclosed overhead and on all 
sides so as to keep out the weather.
    Flood control storage means the volume within an elevation range on 
a TVA reservoir that is reserved for the storage of floodwater.
    Flood control storage zone means the area within an elevation range 
on a TVA reservoir that is reserved for the storage of floodwater. TVA 
shall, upon request, identify the contour marking the upper limit of 
the flood control storage zone at particular reservoir locations.
    Flood risk profile elevation means the elevation of the 500-year 
flood that has been adjusted for surcharge at the dam. Surcharge is the 
ability to raise the water level behind the dam above the top-of-gates 
elevation.
    Flowage easement shoreland means privately owned properties where 
TVA has the right to flood the land.
    Footprint means the total water surface area of either a square or 
rectangular shape occupied by an adjoining property's owner's dock, 
pier, boathouse, or boatwells.
    Maximum shoreline contour means an elevation typically five feet 
above the top of the gates of a TVA dam. It is sometimes the property 
boundary between TVA property and adjoining private property.
    Nonnavigable houseboat means any houseboat not in compliance with 
one or more of the criteria defining a navigable houseboat.
    Normal summer pool means the level to which the reservoirs may be 
filled by June 1. Where storage space is available above this level, 
additional filing may be made as needed for flood control.
    Owner or landowner means all of the owners of a parcel of land. In 
all cases where TVA approval is required to engage in an activity and 
the applicant's eligibility to seek approval depends on status as an 
owner of real property, the owner or owners of only a fractional 
interest or of fractional interests totaling less than one in any such 
property shall under no circumstances be considered, by virtue of such 
fractional interests or interest only, to be an owner and as such 
eligible to seek approval to conduct the activity without the consent 
of the other co-owners.
    Shoreland means same as shoreline area.
    Shoreline means the line where the water of a TVA reservoir meets 
the shore when the water level is at the normal summer pool elevation.
    Shoreline means the line where the water of a TVA reservoir meets 
the shore when the water level is at the normal summer pool elevation.
    Shoreline area means the surface of land lying between minimum 
winter pool elevation of a TVA reservoir and the maximum shoreline 
contour.
    Shoreline Management Zone (SMZ) means an area on TVA-owned land 
beginning at the normal summer pool elevations and extending 50 feet 
inland.
    Shoreline structure means Any land-based structure constructed 
above the full summer pool elevation of a TVA lake but below the 
maximum shoreline contours of that lake.
    TVA means the Tennessee Valley Authority.
    TVA property means real property owned by the United States and 
under the custody and control of TVA.
    Vice President means the Vice President, Resource Stewardship, TVA, 
or a functionally equivalent position.
    Water-based structure means any structure, fixed or floating, 
constructed on or in navigable waters of the United States.
    Winter drawdown elevation means the elevation to which a reservoir 
water level is lowered during fall to provide storage capacity for 
winter and spring floodwaters.
    Winter pool means the lowest level expected for the reservoir 
during the flood season.


Sec. 1304.401  Flotation devices and material, all floating structures.

    (a) Flotation for all docks, boat mooring buoys, and other water-
use structures and facilities, shall be of materials commercially 
manufactured for marine use. Flotation materials shall not become 
waterlogged, crack, peel, fragment, or be subject to loss of beads. 
Flotation materials shall be resistant to puncture, penetration, damage 
by animals, and fire. Any flotation within 40 feet of a line carrying 
fuel shall be 100 percent impervious to water and fuel. Styrofoam 
flotation must be encased. Reuse of plastic, metal, or other previously 
used drums or

[[Page 56833]]

containers for encasement or flotation purpose is prohibited, except as 
provided in paragraph (c) of this section for certain metal drums 
already in use. Existing flotation (secured in place prior to [the 
effective date of the final rule]) in compliance with previous rules 
(contained in the 18 CFR, part 400 to End, edition revised as of April 
1, 2000) is authorized until in TVA's judgment the flotation is no 
longer serviceable, at which time it shall be replaced with approved 
flotation upon notification from TVA. For any float installed after 
[the effective date of the final rule], repair or replacement is 
required when it no longer performs its designated function or exhibits 
any of the conditions prohibited by this subpart.
    (b) Because of the possible release of toxic or polluting 
substances, and the hazard to navigation from metal drums that become 
partially filled with water and escape from docks, boathouses, 
houseboats, floats, and other water-use structures and facilities for 
which they are used for flotation, the use of metal drums in any form, 
except as authorized in paragraph (c) of this section, for flotation of 
any facilities is prohibited.
    (c) Only metal drums which have been filled with plastic foam or 
other solid flotation materials and welded, strapped, or otherwise 
firmly secured in place prior to July 1, 1972, on existing facilities 
are permitted. Replacement of any metal drum flotation permitted to be 
used by this paragraph must be with a commercially manufactured 
flotation device or material, for example, pontoons, boat hulls, or 
other buoyancy devices made of steel, aluminum, fiberglass, or plastic 
foam, as provided for in paragraph (a) of this section.
    (d) Every flotation device employed in the Tennessee River system 
must be firmly and securely affixed to the structure it supports with 
materials capable of withstanding prolonged exposure to wave wash and 
weather conditions.


Sec. 1304.402  Marine sanitation devices.

    No person operating a commercial boat dock permitted under this 
part shall allow the mooring at such permitted facility of any 
watercraft or floating structure equipped with a marine sanitation 
device (MSD) unless such MSD is in compliance with all applicable 
statutes and regulations governing ``no discharge'' zones. All slip 
rental arrangements entered into after [the effective date of the final 
rule] by operators of such commercial boat docks shall contain a 
written provision implementing this requirements. Upon request of TVA, 
commercial dock operators shall provide evidence satisfactory to TVA of 
their compliance with this section.


Sec. 1304.403  Wastewater outfalls; septic tanks.

    (a) Wastewater outfall. Applicants for a wastewater outfall shall 
provide copies of all Federal, State, and local permits, licenses, and 
approvals required for the facility prior to applying for TVA approval, 
or shall concurrently with the TVA application apply for such 
approvals. A section 26a permit shall not be issued until other 
required water quality approvals are obtained, and TVA reserves the 
right to impose additional requirements.
    (b) Septic systems. Septic tank and sewage disposal systems 
associated with facilities regulated under this part must meet the 
following requirements:
    (1) Site approval by the local health department, including 
suitable soil conditions, percolation rates, slope, and area.
    (2) A 2-foot vertical separation disposal field and the normal 
summer pool.
    (3) When annual flood-frequency elevations are available for the 
mainstream reservoirs, they will be used instead of the normal summer 
pool elevation. Tributary reservoirs will use the normal maximum pool.
    (4) Septic tank systems shall not be located on TVA-owned property 
within the shoreline area.


Sec. 1304.404  Marina sewage pump-out stations and holding tanks.

    All pump-out facilities constructed after [the effective date of 
the final rule] shall meet the following minimum design and operating 
requirements:
    (a) Spill-proof connection with shipboard holding tanks;
    (b) Suction controls or vacuum breaker capable of limiting suction 
to such levels as will avoid collapse of rigid holding tanks;
    (c) Available fresh water facilities for tank flushing;
    (d) Check valve and positive cut-off or other device to preclude 
spillage when breaking connection with vessel being served;
    (c) Adequate interim storage where storage is necessary before 
transfer to approved treatment facilities;
    (f) No overflow outlet capable of discharging effluent into the 
reservoir;
    (g) Alarm system adequate to notify the operator when the holding 
tank is full;
    (h) Convenient access to holding tanks and piping system for 
purposes of inspection;
    (i) Spill-proof features adequate for transfer of sewage from all 
movable floating pump-out facilities to shore-based treatment plants or 
intermediate transfer facilities; and
    (j) A reliable disposal method consisting of:
    (1) An approved upland septic system that meets TVA, State, and 
local requirements; or
    (2) Proof of a contract with a sewage disposal contractor;
    (k) A written statement to TVA certifying that the system shall be 
operated and maintained in such a way as to prevent any discharge or 
seepage of wastewater or sewage into the lake.


Sec. 1304.405  Commercial marina harbor limits.

    The landward limits of commercial marina harbor areas are 
determined by the extent of land rights held by the dock operator. The 
lakeward limits of harbors at commercial marinas will be designated by 
TVA on the basis of the size and extent of facilities at the dock, 
navigation and flood control requirements, optimum use of lands and 
land rights owned by the United States, and on the basis of the 
environmental effects associated with the use of the harbor. Mooring 
buoys or slips and permanent anchorage are prohibited beyond the 
lakeward extent of harbor limits.


Sec. 1304.406  Fuel storage tanks and handling facilities

    Fuel storage tanks and handling facilities are generally either 
underground (UST) or aboveground (AST) storage tank systems. An UST is 
any one or combination of tanks or tank systems defined in applicable 
Federal or State regulations as an UST. Typically (unless otherwise 
provided by applicable Federal or State rules), an UST is used to 
contain a regulated substance (such as a petroleum product) and has 10 
percent or more of its total volume beneath the surface of the ground. 
The total volume includes any piping used in the system. An UST may be 
a buried tank, or an aboveground tank with buried piping if the piping 
holds 10 percent or more of the total system volume including the tank. 
For purposes of this part, an aboveground storage tank (AST) is any 
storage tank whose total volume (piping and tank) is less than 10 
percent underground or any storage tank defined by applicable law or 
regulation as an AST.
    (a) TVA requires the following to be included in all applications 
submitted after [the effective date of the final rule] to install an 
UST or any part of an UST system below the 500-year flood elevation on 
a TVA reservoir, or regulated tailwater:

[[Page 56834]]

    (1) A copy of the State approval for the UST along with a copy of 
the application sent to the State and any plans or drawings that were 
submitted for the State's review;
    (2) Evidence of secondary containment for all piping or other 
systems associated with the UST;
    (3) Evidence of Secondary containment to contain leaks from gas 
pump(s);
    (4) Calculations certified by a licensed, professional engineer in 
the relevant State showing how the tank will be anchored so that it 
does not float during flooding; and
    (5) Evidence, where applicable, that the applicant has complied 
with all spill prevention, control and countermeasures (SPCC) 
requirements.
    (b) The applicant must accept and sign a document stating that the 
applicant shall at all times be the owner of the UST system, that TVA 
shall have the right (but no duty) to prevent or remedy pollution or 
violations of law, including removal of the UST system, with costs 
charged to the applicant, that the applicant shall at all times 
maintain and operate the UST system in full compliance with applicable 
Federal, State, and local UST regulations, and that the applicant shall 
maintain eligibility in any applicable State trust fund.
    (c) An application to install an AST or any part of an AST system 
below the 500-year elevation on a TVA reservoir or a regulated 
tailwater is subject to all of the requirements of Sec. 1304.406 (a) 
and (b) except that paragraph (a)(1) shall not apply in States that do 
not require application or approval for installation of an AST. 
Eligibility must be maintained for any applicable AST trust fund, and 
the system must be maintained and operated in accordance with any 
applicable AST regulations. The applicant must notify and obtain any 
required documents or permission from the State fire marshal's office 
prior to installation of the AST. The applicant must also follow the 
National Fire Protection Association Codes 30 and 30A for installation 
and maintenance of flammable and combustible liquids storage tanks at 
marine service stations.
    (d) Fuel handling on private, non-commercial docks and piers. TVA 
will not approve the installation, operation, or maintenance of fuel 
handling facilities on any private, non-commercial dock or pier.
    (e) Demonstration of financial responsibility. Applicants for a 
fuel handling facility to be located in whole or in part on TVA land 
shall be required to provide TVA, in a form and amount acceptable to 
TVA, a surety bond, irrevocable letter of credit, pollution liability 
insurance, or other evidence of financial responsibility in the event 
of a release.


Sec. 1304.407  Removal of unauthorized, unsafe, and derelict 
structures.

    If, at any time, any dock, wharf, boathouse (fixed or floating), 
nonnavigable houseboat, outfall, aerial cable, or other fixed or 
floating structure or facility (including any navigable boat or vessel 
that has become deteriorated and is a potential navigation hazard or 
impediment to flood control) is anchored, installed, constructed, or 
moored in a manner inconsistent with this part, or is not constructed 
in accordance with plans approved by TVA, or is not maintained or 
operated so as to remain in accordance with such plans, or is not kept 
in a good state of repair and in good, safe, and substantial condition, 
and the owner or operator thereof fails to repair or remove such 
structure (or operate or maintain it in accordance with such plans) 
within ninety (90) days after written notice from TVA to do so, TVA may 
cancel any license, permit, or approval and remove such structure, and/
or cause it to be removed, from the Tennessee River system and/or lands 
in the custody or control of TVA. Such written notice may be given by 
mailing a copy thereof to the owner's address as listed on the license, 
permit, or approval or by posting a copy on the structure or facility. 
TVA will remove or cause to be removed any such structure or facility 
anchored, installed, constructed, or moored without such license, 
permit, or approval, whether such license or approval has once been 
obtained and subsequently canceled, or whether it has never been 
obtained. TVA's removal costs shall be charged to the owner of the 
structure, and payment of such costs shall be a condition of approval 
for any future facility proposed to serve the tract of land at issue or 
any tract derived therefrom whether or not the current owner caused 
such charges to be incurred. In addition, any applicant with an 
outstanding removal charge payable to TVA shall, until such time as the 
charge be paid in full, be ineligible to receive a permit or approval 
from TVA for any facility located anywhere along or in the Tennessee 
River or its tributaries. TVA shall not be responsible for the loss of 
property associated with the removal of any such structure or facility 
including, without limitation, the loss of any navigable boat or vessel 
moored at such a facility. Any costs voluntarily incurred by TVA to 
protect and store such property shall be removal costs within the 
meaning of this section, and TVA may sell such property and apply the 
proceeds toward any and all of its removal costs. Small businesses 
seeking expedited consideration of the economic impact of actions under 
this section may contact TVA's Supplier and Diverse Business Relations 
staff, TVA Procurement, 1101 Market Street, Chattanooga, Tennessee 
37402-2801.


Sec. 1304.408  Development within flood control storage zones of TVA 
reservoirs.

    (a) Activities involving development within the flood control 
storage zone on TVA reservoirs will be reviewed to determine if the 
proposed activity qualifies as a repetitive action. Under TVA's 
implementation of Execution Order 11988, Floodplain Management, 
repetitive actions are projects within a class of Actions TVA has 
determined to be approvable without further review and documentation 
related to flood control storage, provided the loss of flood control 
storage caused by the project does not exceed one acre-foot. A partial 
list of repetitive actions includes:
    (1) Private and public water use facilities;
    (2) Commercial recreation boat dock and water use facilities;
    (3) Water intake structures;
    (4) Outfalls;
    (5) Mooring and loading facilities for barge terminals;
    (6) Minor grading and fills; and
    (7) Bridges and culverts for pedestrian, highway, and railroad 
crossings.
    (b) Projects resulting in flood storage loss in excess of one acre-
foot will not be considered repetitive actions.
    (c) For projects not qualifying as repetitive actions, the 
applicant would be required, as appropriate, to evaluate alternatives 
to the placement of fill or the construction of a project within the 
flood control storage zone that would result in lost flood control 
storage. The alternative evaluation would either identify a better 
option or support and document that there is no reasonable alternative 
to the loss of flood control storage. If this determination can be 
made, the applicant must then demonstrate how the loss of flood control 
storage will be minimized.
    (1) In addition, documentation should be provided regarding:
    (i) The amount of anticipated flood control storage loss;
    (ii) The cost of compensation of the displaced flood control 
storage (how much it would cost to excavate material from the flood 
control storage zone, haul it to an upland site and dispose of it);
    (iii) The cost of mitigation of the displaced flood control storage 
(how

[[Page 56835]]

much it would cost to excavate material from another site within the 
flood control storage zone, haul it to the project site and use as the 
fill material);
    (iv) The cost of the project; and
    (v) The nature and significance of any economic and/or natural 
resource benefits that would be realized as a result of the project.
    (2) TVA may, in its discretion, decline to permit any project that 
would result in the loss of flood control storage.
    (d) Recreational vehicles parked or placed within flood control 
storage zones of TVA reservoirs shall be deemed an obstruction 
affecting navigation, flood control, or public lands or reservations 
within the meaning of section 26a of the Act unless they:
    (1) Remain truly mobile and ready for highway use. The unit must be 
on its wheels or a jacking system and be attached to its site by only 
quick disconnect type utilities;
    (2) Have no permanently attached additions, connections, 
foundations, porches, or similar structures; and
    (3) Have an electrical cutoff switch that is located above the 
flood control zone and fully accessible during flood events.


Sec. 1304.409  Variances.

    The Vice President or the designee thereof is authorized, following 
consideration whether a proposed structure or other regulated activity 
would adversely impact navigation, flood control, public lands or 
reservations, power generation, the environment, or sensitive 
environmental resources, or would be incompatible with surrounding uses 
or inconsistent with an approved TVA reservoir land management plan, to 
approve a structure or activity the varies from the requirements of 
this part in minor aspects.


Sec. 1304.410  Indefinite or temporary moorage of recreational vessels.

    (a) Recreational vessels' moorage at unpermitted locations along 
the shoreline of any TVA lake may not exceed 14 consecutive days at any 
one place or at any place within one mile thereof.
    (b) Recreational vessels may not establish temporary moorage within 
the limits of primary or secondary navigation channels.
    (c) Moorage lines of recreational vessels may not be placed in such 
a way as to block or hinder boating access to any part of the lake.


Sec. 1304.411  Navigation restrictions.

    (a) Except for the placement of riprap along the shoreline, 
structures, land based or water-use, shall not be located within the 
limits of safety harbors and landings establish for commercial 
navigation.
    (b) Structures shall not be located in such a way as to block the 
visibility of navigation aids located on the shoreland or in the 
reservoir adjacent to the shoreline. Examples of navigation aids are 
lights, dayboards, and directional signs.
    (c) Docks, piers, and boathouses located in coves, embayments, or 
creeks shall not extend more than one third the distance to the 
opposite shoreline at normal summer pool elevation.
    (d) The establishment of ``no-wake'' zones outside approved harbor 
limits is prohibited at marinas or community dock facilities that are 
adjacent to or near a commercial navigation channel. In such 
circumstances, facility owners may, upon approval from TVA, install a 
floating breakwater along the harbor limit to reduce wave and wash 
action.

Appendix A To Part 1304--Section 26a of Tennessee Valley Authority Act 
of 1933, as Amended (49 Stat. 1079, 16 U.S.C. 831y-1)

    Section 26a. The unified development and regulation of the 
Tennessee River system requires that no dam, appurtenant works, or 
other obstruction affecting navigation, flood control, or public 
lands or reservations shall be constructed, and thereafter operated 
or maintained across, along, or in the said river or any of its 
tributaries until plans for such construction, operation, and 
maintenance shall have been submitted to and approved by the Board; 
and the construction, commencement of construction, operation, or 
maintenance of such structures without such approval is hereby 
prohibited. When such plans shall have been approved, deviation 
therefrom either before or after completion of such structures is 
prohibited unless the modification of such plans has previously been 
submitted to and approved by the Board.
    In the event the Board shall, within sixty (60) days after their 
formal submission to the Board, fail to approve any plans or 
modifications, as the case may be, for construction, operation, or 
maintenance of any such structures on the Little Tennessee River, 
the above requirements shall be deemed satisfied, if upon 
application to the Secretary of War, with due notice to the 
Corporation, and hearing thereon, such plans or modifications are 
approved by the said Secretary of War as reasonable adequate and 
effective for the unified development and regulation of the 
Tennessee River system.
    Such construction, commencement of construction, operation, or 
maintenance of any structures or parts thereof in violation of the 
provisions of this section may be prevented, and the removal or 
discontinuation thereof required by the injunction or order of any 
district court exercising jurisdiction in any district in which such 
structures or parts thereof may be situated, and the Corporation is 
hereby authorized to bring appropriate proceedings to this end.
    The requirements of this section shall not be constructed to be 
a substitute for the requirements of any other law of the United 
States or of any State, now in effect or hereafter enacted, but 
shall be in addition thereto, so that any approval, license, permit, 
or other sanction now or hereafter required by the provisions of any 
such law for the construction, operation, or maintenance of any 
structures whatever, except such as may be constructed, operated, or 
maintained by the Corporation, shall be required, notwithstanding 
the provisions of this section.

[Note: The official text of section 26a of the Tennessee Valley 
Authority Act of 1933, as amended, is published at 16 U.S.C. 831y-
1.]

    Dated: September 5, 2000.
Kathryn J. Jackson,
Executive Vice President, River Systems Operations and Environment, 
Tennessee Valley Authority.

[FR Doc. 00-23424 Filed 9-19-00; 8:45 am]
BILLING CODE 8120-08-M