[Federal Register Volume 68, Number 33 (Wednesday, February 19, 2003)]
[Notices]
[Pages 8069-8070]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-3982]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

[CGD05-03-003]


Navigable Waters and Jurisdiction; Lake Fontana, NC

AGENCY: Coast Guard, DOT.

ACTION: Notice; proposed change to navigability status.

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SUMMARY: The Coast Guard plans to modify the agency navigability status 
of Lake Fontana, an impoundment of Little Tennessee River, wholly 
located in western North Carolina so that Lake Fontana will no longer 
be navigable for purposes of Coast Guard jurisdiction. The Coast Guard 
seeks your comments before we change the navigability status of the 
lake.

DATES: Comments and related material must reach the Coast Guard on or 
before March 21, 2003.

[[Page 8070]]


ADDRESSES: You may mail comments and related material to Commander, 
Fifth Coast Guard District Legal Office, Federal Building 2nd Floor, 
431 Crawford Street, Portsmouth, Virginia 23704-5004, or they may be 
hand delivered to the same address between 8 a.m. and 4 p.m., Monday 
through Friday, except Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Commander Christine N. 
Cutter, Legal Advisor, Fifth Coast Guard District, at telephone number 
(757) 398-6291.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to submit comments and related material. If you do 
so, please include your name and address, identify the docket number 
for this notice CGD05-03-003, indicate the specific section of this 
document to which each comment applies, and give the reason for each 
comment. Please submit all comments and related material in an unbound 
format, no larger than 8\1/2\ by 11 inches, suitable for copying. If 
you would like to know that your submission has reached us, please 
enclose a stamped, self-addressed postcard or envelope. We will 
consider all comments and material received during the comment period.

Background

    The Coast Guard, in a letter dated January 6, 1954, determined that 
Lake Fontana, an impoundment of Little Tennessee River, wholly located 
in western North Carolina, is a navigable body of water of the United 
States for purposes of Coast Guard jurisdiction. The Coast Guard's 
determination relied primarily on a letter from the Tennessee Valley 
Authority (TVA) dated September 24, 1953. The TVA letter further 
referenced a 1953 tentative decision by the Federal Power Commission 
(FPC), which determined that the Little Tennessee River was a navigable 
water of the United States from its mouth to a point above the former 
site of Bushnell, North Carolina, which is upstream of Fontana Dam at 
mile marker 61.
    After the Coast Guard issued its determination, on March 4, 1954, 
the Federal Power Commission issued a final decision In the Matters of 
Aluminum Company of America, Knoxville Power Company; Carolina Aluminum 
Company, Docket Nos. IT-5696; 5697, 5698 Opinion No. 267, 13 F.P.C. 14; 
1954. The final decision was rendered after all parties had the 
opportunity to present additional evidence on the issue of 
navigability. Briefs and exceptions to the tentative and initial 
decisions were filed and oral argument was heard on the case. 
Therefore, the final decision considered all the relevant evidence for 
determining navigability on the Little Tennessee River. The final 
decision failed to reference information contained in the tentative 
decision on logs being floated down the Little Tennessee River from 
Bushnell, NC. The Federal Power Commission determined that the Little 
Tennessee River is a navigable body of water of the United States from 
its mouth to at least the mouth of Abrams Creek at mile 37. Therefore, 
Lake Fontana, which is formed at mile 61 by the construction of the 
Fontana Dam, was not considered by the Commission as a navigable body 
of water of the United States. The Coast Guard did not make a 
corresponding change to its navigability determination to reflect the 
FPC's final decision.
    In addition, there are no federal court decisions or congressional 
actions concerning Lake Fontana's navigability. As a point of 
clarification, the Department of Energy Organization Act abolished the 
Federal Power Commission (FPC), on October 1, 1977 and the new agency 
the Federal Energy Regulatory Commission inherited most of the FPC's 
responsibilities.

Purpose

    While the Coast Guard is not required to provide notice of a change 
in navigability status, this document serves to bring to the attention 
of the public and the State of North Carolina the Coast Guard's 
intention to change the navigability status on Lake Fontana that has 
been in effect since 1954. Reliable evidence as contained in the final 
decision by the Federal Power Authority supports the navigability of 
the Little Tennessee River up to mile 37. Therefore, the Coast Guard 
plans to amend its navigability determination of Lake Fontana to be 
non-navigable for purposes of Coast Guard jurisdiction.
    When making a determination whether a particular body of water 
qualifies as navigable water for purposes of Coast Guard jurisdiction, 
the Code of Federal Regulations and federal case law are controlling. 
The statutory provisions were derived from the test for navigability as 
pronounced in The Daniel Ball, 77 U.S. 557 (1870). Title 33 CFR 2.05-25 
(a)(3) defines waters such as Lake Fontana--that is, internal waters 
not subject to tidal influence--as navigable waters if such waters 
``are or have been used, or are or have been susceptible for use, by 
themselves or in connection with other waters, as highways for 
substantial interstate or foreign commerce notwithstanding natural or 
man-made obstruction that require portage.''
    The Coast Guard's administrative determination regarding a body of 
water's navigability status is solely for the purpose of administering 
and enforcing applicable Coast Guard laws and regulations. This planned 
change in determination would not be conclusive on the issue of whether 
a body of water is navigable water for other federal purposes.

    Dated: February 5, 2003.
J. D. Hull,
Vice Admiral, Coast Guard, Commander, Fifth Coast Guard District.
[FR Doc. 03-3982 Filed 2-18-03; 8:45 am]
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