[Federal Register Volume 68, Number 152 (Thursday, August 7, 2003)]
[Rules and Regulations]
[Pages 46930-46948]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-20078]
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TENNESSEE VALLEY AUTHORITY
18 CFR Part 1304
RIN 3316-AA19
Approval of Construction in the Tennessee River System;
Regulation of Structures; Residential Related Use on TVA-Controlled
Residential Access Shoreland and TVA Flowage Easement Shoreland
AGENCY: Tennessee Valley Authority (TVA).
ACTION: Final rule.
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SUMMARY: This rule amends TVA's 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 rule generally updates
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, 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 are revised for clarity. The rules for nonnavigable
houseboats are clarified, and a provision governing sanitation for
nonnavigable houseboats is added. In addition, new subparts incorporate
into rules the ``Shoreline Management Policy'' (SMP) that was adopted
by the TVA Board of Directors on April 21, 1999, and became effective
on November 1, 1999.
DATES: This rule is effective September 8, 2003, except for paragraphs
(b), (c), and (d) of Sec. 1304.2, which contain information collection
requirements that
[[Page 46931]]
have not yet been approved by OMB. TVA will publish a document in the
Federal Register announcing the effective date.
ADDRESSES: Tennessee Valley Authority, Post Office Box 1589, 17
Ridgeway Road, Norris, Tennessee 37828.
FOR FURTHER INFORMATION CONTACT: Robert L. Curtis at the above address.
Mr. Curtis also may be contacted by telephone ((865) 632-1552) or by e-
mail ([email protected]).
SUPPLEMENTARY INFORMATION:
I. Legal Authority
These regulations are promulgated 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 for 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. In the September 20, 2000, issue of the
Federal Register (65 FR 56,821), TVA published a proposed rulemaking to
further amend the section 26a 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. TVA also proposed to add new sections providing for the
handling of requests for waivers and variances, and to revise for
clarity the sections governing the application process and the handling
of appeals.
In addition, TVA proposed to add new subparts C and D regarding
residential-related use of TVA-controlled residential access shoreland
and TVA flowage easement shoreland in order to incorporate into rules
the SMP policy that was adopted by TVA's Board of Directors on April
21, 1999, and became effective on November 1, 1999. A detailed analysis
of the proposed rulemaking is contained in the preamble to the proposed
rule.
III. Discussion of Public Comments
In response to the September 20, 2000, Federal Register notice of
proposed rulemaking, TVA received eleven letters and e-mail messages
commenting on the proposed rule. Some commenters applauded aspects of
the proposed regulations that they considered to be environmentally
beneficial. Some urged TVA to take additional actions that they said
would be even more protective of the environment. Others criticized
parts of the proposed rule as overly restrictive. The following
discussion addresses the major points raised by the commenters.
One commenter objected to the 50-foot-deep shoreline management
zone (SMZ) described in proposed Sec. 1304.203 as a taking of private
property without due process of law. This is not the case, however,
because Sec. 1304.203 clearly applies only to land already owned by
TVA. This commenter also objected to the size limitation for enclosed
storage space (32 square feet) and to the prohibitions against
enclosing or placing a roof on the second story of certain facilities
that are contained in proposed Sec. 1304.204. Enclosed storage space
on a dock or a pier is approved solely for the storage of equipment
used in boating and water recreation, such as skis, life vests, fishing
equipment, etc. TVA's experience is that 32 square feet is sufficient
for this storage need. Other equipment not directly related to boating
or water recreation should be stored elsewhere. Second story structures
and roofs create a visual obstruction and are not a necessary component
of a dock or pier having the primary purpose of allowing water access.
The commenter also questioned the proposed channel excavation rule
(Sec. 1304.207). Channel excavation can adversely affect shoreline
aquatic habitats and animal communities, and can create problems in
placement and stabilization of the spoil material. TVA's policy is to
minimize dredging and channel excavation, especially in shallow water
areas. The provisions addressing depth of excavation, channel slope,
and spoil placement are necessary to minimize siltation, adverse water
quality impacts, and the need for frequent dredged channel maintenance.
The previous commenter also disagreed with the prohibition against
the use of broken concrete for retaining walls. The commenter stated
that he intended to build a wall by neatly stacking broken concrete
sections of uniform four-inch thickness salvaged from floors and
sidewalks. This is not the type of broken concrete typically proposed
for retaining walls, and TVA did not intend to prohibit the use of such
concrete. Rather, TVA intended to prohibit the use of the irregular and
crumbling concrete pieces that it has found to be unsightly and often
ineffective for construction of retaining walls. To make clear that TVA
would consider proposals to erect retaining walls from the type of
concrete mentioned by the commenter, a parenthetical phrase has been
added to Sec. 1304.208(c)(2).
Some commenters suggested that the rule should contain an external
appeals process providing that disputes about permitting of water-use
facilities would ultimately be resolved by some entity other than TVA.
These comments are inconsistent with section 26a of the TVA Act, which
makes TVA responsible for determinations regarding the construction,
operation, and maintenance of obstructions in the Tennessee River and
its tributaries.
Some commenters stated that a permit should not expire simply
because construction is not initiated within 18 months after a permit
is issued (Sec. 1304.9). TVA does not agree. Eighteen months is a more
than reasonable amount of time after the issuance of a permit to
initiate construction. Conditions may change over time such that
different permit terms would be appropriate. Adjacent landowners who
wish to apply for water-use facility permits should not have their
options limited by the existence of approved permits for facilities
that may never be built.
Some commenters suggested a need for the rule to more clearly
indicate the circumstances under which TVA would approve new owners'
applications to continue using a permitted facility or conducting a
permitted activity. It also was suggested that the rule should make
clear that a new owner who had applied for a permit could continue
using an existing facility pending TVA's decision on the new owner's
application. TVA agrees with these suggestions and has changed the rule
accordingly. Consistent with these changes, TVA also has revised Sec.
1304.10 to refer to ``facilities'' and ``activities'' rather than
structures.
A number of commenters objected to the proposed applicability
section for TVA-owned residential access shoreland (Sec. 1304.201).
These commenters stated that TVA is seeking
[[Page 46932]]
to eliminate deeded rights to construct a water-use facility on TVA
land. This is not correct. TVA is not seeking to eliminate any deeded
rights. Rather, TVA is specifically defining the categories of TVA-
owned land where private, residential water-use facilities will be
considered. TVA-owned land subject to deed provisions for ingress and
egress is one such general category. Thus, the rule recognizes that
deeded rights of ingress and egress may imply a right to build a water-
use facility in some cases (but not where the applicable real estate
documents specifically exclude the erection of structures), and it
generally allows water-use facilities in such cases. It must be
recognized, however, that the exercise of such rights is subject to TVA
approval under section 26a of the TVA Act if a proposed facility would
be an obstruction in the Tennessee River system, and TVA may deny or
require modifications to any permit application.
Some commenters suggested that Sec. 1304.211 should be revised to
make it more clear that certain pre-existing lawns could continue to be
mowed even though such activities were previously conducted without a
permit. TVA agrees, and the section has been revised to provide the
requested clarification.
A comment objected to the requirement to apply for and obtain a
permit before engaging in vegetation management on TVA-owned land. The
final rule retains this requirement as a reasonable means for TVA to
monitor vegetation management activities by private parties on TVA-
owned land. There also were objections to a number of other rule
provisions implementing TVA's SMP for vegetation management. TVA
believes the SMP vegetation management provisions were well considered
after substantial public input and comment received in connection with
the SMP environmental impact statement (EIS), and that no information
developed during this rulemaking provides any basis for changing those
provisions. Specifically, TVA does not agree with the suggestion that
an unreasonable fire hazard risk is created by requiring the forest
floor to remain undisturbed.
In response to a commenter's question as to how certain plants may
be eradicated if herbicides are not allowed, both the proposed and
final rules allow for the use of herbicides in accordance with an
approved plan. TVA has not identified the pesticides considered to be
``restricted use'' because the classification of pesticides as
restricted use is the responsibility of other regulatory authorities.
There was an objection to TVA's considering the potential effect of
a proposed dock on boater access into a cove. This, however, is the
kind of navigation issue specifically committed to TVA's discretion
under section 26a of the TVA Act.
It was argued in one comment that the requirement to obtain a
permit in order to locate a septic tank on TVA flowage easement
property was unfair because it would require existing septic system
owners to relocate, and it was suggested that a grandfather clause
should be included for existing owners. The final rule has been revised
to delete septic tank permitting requirements and specifications.
Except in the case of approved, nonnavigable houseboats, toilets and
sinks are not allowed on water-use facilities. TVA will continue to
address matters related to septic tanks on flowage easements on a case-
by-case basis in accordance with the terms of particular flowage
easements. TVA intends to use its land management authority to prohibit
septic tanks and drainfields on TVA land below the maximum shoreline
contour.
In response to comments that the rule does not discuss the
permitting fee and that there should not be a permitting fee, TVA
refers to the TVA administrative cost recovery regulations, which are
separately codified at 18 CFR part 1310 (2003). TVA establishes
standard charges that are approximately equal to TVA's actual average
administrative costs for the category of action.
A comment objected to the requirement to number structures. TVA has
decided to delete this requirement.
A comment stated that the entire section related to flowage
easement property should be deleted because it is an improper attempt
to assert TVA authority over property it does not own. TVA disagrees.
TVA's authority over flowage easement property is derived both from
section 26a of the TVA Act and from the language of the various
documents establishing TVA's flowage easement rights. TVA recognizes,
however, that its rights as a property owner are in some circumstances
broader than its authority over flowage easement property. This
distinction is the basis for having separate rule sections governing
these two types of property.
Two groups with an expressed interest in protecting the Norris
Reservoir watershed provided comments to the effect that the proposed
rule should be revised to provide for better enforcement of houseboat
sewage rules and other environmental regulations. TVA appreciates these
comments and expresses its general agreement with many of the groups'
stated aims. Some of the requested actions, however, may exceed TVA's
authority and the scope of this rule. TVA is not the primary
environmental regulator on TVA reservoirs. TVA has, however, included a
number of provisions directly addressing many of the concerns raised by
the commenters (e.g., Sec. Sec. 1304.401, 1304.402, and 1304.403). TVA
also has undertaken a number of other activities in addition to this
rulemaking (such as the Clean Marina Initiative and the development of
cooperative relationships with State and Federal agencies having
jurisdiction over enforcement of marine sanitation requirements) to
address environmental issues such as those raised by the commenters.
A commenter writing on behalf of the Melton Hill Lake Association
raised several specific issues. First, the commenter described the
vegetation management provisions as a method for TVA to deny dock
permits when there are no other reasons to deny one. TVA disagrees. The
vegetation management provisions, which only apply to TVA-owned land,
reflect TVA's best judgment as to how the vegetation on reservoir-
related TVA land should be managed. They are designed to accommodate
the construction of water-use facilities on TVA-owned residential
access shoreline. There may, of course, be specific cases where the
presence of wetlands, threatened or endangered plants, or other
vegetation-related sensitive resources might provide a basis for
denying a permit or requiring mitigation measures or adoption of other
vegetation management requirements.
Second, the commenter generally praised the provisions related to
shoreline stabilization, wastewater outfalls, and septic systems. With
respect to shoreline stabilization, however, it was suggested that
appropriate techniques for particular reservoirs should be
independently evaluated to account for specific circumstances. TVA
agrees and intends to consider specific requests for approval of
shoreline stabilization activities on a case-by-case basis. The
commenter requested additional action with respect to livestock animals
being allowed in the water. TVA appreciates the commenter's concern,
but this issue is beyond the scope of this rule.
Third, the commenter described TVA's discussion of the Regulatory
Flexibility Act in the preamble to the proposed rule as legalese,
misleading, and not reflective of actual economic
[[Page 46933]]
impacts. TVA does not agree with these characterizations. A regulatory
flexibility analysis is required only when there will be a
``significant economic impact on a substantial number of small
entities.'' 5 U.S.C. 605(b). These words are taken directly from the
Regulatory Flexibility Act. The statute defines ``small entity'' as a
``small business,'' ``small organization'' (further defined as a ``not-
for-profit enterprise''), or a ``small governmental jurisdiction.''
Most applications for water-use facilities are submitted by residential
landowners for personal use. Since residential landowners are not
businesses, not-for-profit enterprises, or small governmental
jurisdictions, there are relatively few ``small entities'' affected by
today's rule. Moreover, nothing in today's rule significantly adds to
the cost of applying for and constructing any regulated facility.
Accordingly, this rule will not have a significant impact on a
substantial number of small entities, and no regulatory flexibility
analysis is required.
One commenter submitted comments focused on alleged errors in
sections of the Melton Hill Land Management Plan (MHLMP) governing use
of TVA land on Melton Hill Reservoir. Specifically, the commenter
objected to certain subcategories of TVA-owned residential access
shoreland in the MHLMP, stating that TVA failed to consider the impacts
on the value of adjacent private property, and requesting that today's
rule be revised to make clear that applications for water-use
facilities will be considered on all TVA-owned residential access
shoreland. TVA does not agree that it should manage its property in
such a way as to enhance the value of adjacent private property at the
expense of protecting sensitive ecological resources on the TVA
property. Moreover, the MHLMP was adopted after a public process that
included, among other things, full opportunity for public comment on
the environmental assessment (EA) that was prepared in connection with
the plan.
The previous commenter also suggested that five specific aspects of
the MHLMP are invalid because they implement ``concepts'' that should
not be implemented until this rulemaking is complete. TVA does not
understand this comment. Except for shoreline categorization of TVA-
owned property (which is addressed above, in no way depends on this
rulemaking, and is exempt from rulemaking requirements because it deals
with management of public property), the concepts to which the
commenter objects are not part of the MHLMP. Three of the concepts
mentioned by the commenter (grandfathering, design limitations, and the
implementation of a shoreline management zone) were subject to public
notice and comment as part of the SMP EIS. Moreover, these matters
involve management of TVA property and/or changes in TVA internal
policies and guidance regarding processing of permit applications, and
thus are not dependent on this rulemaking. The fifth ``concept''
mentioned by the commenter, the ``appeals process,'' has not yet been
implemented. TVA has continued to use the appeals process in the
existing regulation pending finalization of this rule.
One commenter objected that requiring dock permits to be requested
by a landowner does not facilitate fair and equitable real estate
transactions. TVA believes this requirement is a necessary and
appropriate means for TVA to avoid entanglement in disputes among
landowners. Any landowner who wants to know whether a dock could be
permitted at a particular location may obtain a determination by
applying for a permit. This commenter suggested a number of policies
TVA should impose on itself in connection with the management of TVA
land. These matters exceed the scope of this rulemaking. The commenter
also objected to the use of November 1, 1999, as the effective
grandfather date for preexisting shoreline uses and structures. This is
the effective date of the policy changes approved by the TVA Board as
part of the publicly reviewed SMP. As discussed above, many of these
policy changes related to management of TVA property and/or existing
TVA management guidelines and practices which were not previously
addressed in TVA's rules (size limitations, vegetation management,
etc.), and which are not required to be codified in rules. The
implementation of these changes consistent with the effective date of
the SMP is appropriate. Among other things, this rule incorporates such
policies, guidelines, and practices into TVA's section 26a rules for
the first time.
A group of university environmental science graduate students
submitted comments in several categories. The student group commented
that the proposed amendments were inadequate because they did not
provide for the phasing out of previously permitted nonnavigable
houseboats. The final rule adds new provisions governing sanitation,
and it requires nonnavigable houseboats to be maintained in a good
state of repair. These requirements are adequate to address
nonnavigable houseboats.
The student group raised numerous issues and questions related to
shoreline stabilization plans. The comments contain many helpful
suggestions, but they are generally beyond the scope of this rule,
which, for the most part, only describes the types of stabilization
that may be allowed. TVA will consider applications for shoreline
stabilization permits on a case-by-case basis.
The student group requested an explanation regarding the area of
site disturbance to be indicated on the location map submitted with a
permit application. The area of physical disturbance to land and water
by the facility footprint is the area that must be indicated on the
location map. TVA agrees that other information mentioned in the
comment would be relevant in some circumstances. Accordingly, TVA has
added a sentence to Sec. 1304.2(c) providing that TVA may request
additional information where necessary for adequate review of a
particular application.
The student group submitted extensive comments about the use of
pesticides on TVA-owned land along the reservoirs. The comments are in
four general categories. First, it was argued that pesticide use should
only be approved on a case-by-case basis. TVA agrees. This is why Sec.
1304.203(l) provides that herbicides shall not be applied on TVA land
except as specifically approved by TVA in a vegetative management plan.
Second, the student group argued that restricted use pesticides should
never be allowed. TVA does not agree. There may be some situations
where a restricted use pesticide would be appropriate. TVA believes the
requirement for case-by-case TVA approval, together with the
requirements that any application of restricted use pesticides on TVA-
owned shoreland be conducted by a State certified applicator, and that
all herbicides and pesticides be applied in accordance with all
applicable label requirements, provide reasonable protection. Third,
the students stated that TVA should require pesticides to be applied in
accordance with all label requirements. TVA agrees, and the rule so
provides. Fourth, the students also proposed a formal notification
program to inform water intake operators and others of pesticide
application. TVA generally does not expect the application of
pesticides on TVA lands to be of such extent or frequency as to warrant
the creation of the formal notice system contemplated in the comment.
TVA retains the right, however, to require appropriate notification
[[Page 46934]]
procedures when approving individual vegetative management plans.
The student group recommended that all grandfathered metal drum
flotation devices be required to be replaced within a reasonable period
of time. TVA agrees that metal drums are undesirable as flotation
devices. That is why TVA prohibits them unless they were properly
installed before the date on which TVA first issued the prohibition. As
noted in the comment, any flotation devices (including grandfathered
metal drums) must be replaced if TVA determines them to no longer be
serviceable. Any drum that appears likely to cause an environmental
problem would be considered unserviceable. TVA considers this to be
adequate protection. It would be unnecessarily restrictive to require
removal of previously approved flotation that continues to be
serviceable.
The student group also requested consideration of a number of
issues related to the access corridors allowed by the rules. TVA
believes that matters related to access corridors were carefully and
adequately considered during the SMP EIS. This rule, which implements
the SMP provisions regarding access, reflects TVA's best judgment as to
how TVA can best protect shoreline and aquatic resources while at the
same time allowing reasonable access to the water.
In addition to the comments received in response to the September
20, 2000, Federal Register notice, TVA also received comments from a
number of government agencies in response to the EA TVA prepared for
the portions of the rule not covered by TVA's SMP EIS. The major points
raised by these comments are discussed below.
The Wildlife Resources Division of the Georgia Department of
Natural Resources offered several positive comments. The Department
also recommended that the variance provisions be modified to define the
``minor'' variations that could be approved, and to reserve the
approval of variances to the TVA Board or the Vice President, Resource
Stewardship. It also suggested that variance applications should be
required to contain documentation on the affected biotic communities,
adequate mitigation to offset any environmental costs of the variance,
and why development options short of a variance would not achieve the
applicant's goal. TVA appreciates these comments and recommendations.
TVA does not consider it feasible, however, to define in advance all of
the minor variations that might be appropriate in specific
circumstances. With respect to approval authority, the Vice President,
Resource Stewardship, will monitor whether delegated authority is
improvidently exercised. Regarding variance applications, TVA has
decided not to change the proposed rule to specify the documentation
that should be included with such applications. Rather, TVA will
require information to support variance requests on a case-by-case
basis depending upon the particular circumstances. The documentation
suggested by the Department, among other things, is the type of
information that will be required.
The Alabama Historical Commission, the Tennessee Historical
Commission, and the Virginia Department of Historic Resources commented
that the draft EA did not mention historic properties or TVA's
responsibilities under the National Historic Preservation Act of 1966.
TVA is careful to fulfill its responsibilities with respect to historic
properties and cultural resources as it processes applications for
water-use facility permits. Sections 1304.2(c)(1)(v) and
1304.2(c)(2)(vi) address this requirement.
The Kentucky Natural Resources and Environmental Protection Cabinet
pointed out that any bank stabilization or stream disturbance requires
a Sec. 401 water quality certification by the Division of Water and a
Sec. 404 dredge or fill permit from the U.S. Army Corps of Engineers.
TVA concurs, and this is referenced in Sec. 1304.2(c) of the rule.
The U.S. Department of Interior, Fish and Wildlife Service (F&WS)
raised issues over TVA's policy regarding development within
floodplains and its policy on flood control storage capacity.
Specifically the F&WS expressed concerns about the destruction of
habitat associated with fills and dredging to offset loss of flood
storage capacity caused by fills. These issues were discussed in a
meeting between TVA and F&WS representatives in April 2001. TVA has
reviewed very few of these actions in recent years. These included two
fills for access to islands on Douglas Reservoir, removal of material
to compensate for a retaining wall and backfill on Fort Loudoun
Reservoir, and a project to offset fill from a Hamilton County school
on Chickamauga Reservoir. Based on the small number of these requests
received, it does not appear that these actions have had a cumulative
adverse effect on shallow-water aquatic habitat in the past. For future
proposals, TVA would ensure through its review process that the actions
do not adversely affect shallow-water aquatic habitat or unique or
unusual aquatic habitats. Removal of material from the flood control
storage zone will not take place in shallow-water aquatic habitat or
other unique or unusual aquatic habitat, unless there is mitigation to
avoid, minimize, rectify, reduce, or compensate for the ecological
values affected.
Because the proposed regulations deal with activities in
floodplains, the Virginia Department of Environmental Quality and the
Virginia Department of Conservation and Recreation recommended
consultation with the Federal Emergency Management Agency (FEMA). As a
Federal agency, TVA complies with the requirements of Executive Order
(E.O.) 11988 in conducting activities and programs affecting land use,
including planning, regulating, and licensing (including 26a permitting
activities). Section 3(a) of E.O. 11988 States:
The regulations and procedures established under section 2(d) of
this Order shall, at a minimum, require the construction of federal
structures and facilities to be in accordance with the standards and
criteria and to be consistent with the intent of those promulgated
under the National Flood Insurance Program (NFIP). They shall
deviate only to the extent that the standards of the Flood Insurance
Program are demonstrably inappropriate for a given type of structure
or facility.
TVA applies this standard not only to its own facilities, but also
to facilities permitted by TVA. Therefore, by fulfilling the
requirements of E.O. 11988, TVA complies with the NFIP. Thus, further
consultation with FEMA is not necessary.
The Virginia Department of Environmental Quality suggested that
pump-out stations be required at commercial marinas. Section 1304.403
establishes design and operating requirements for new pump-out
stations, but TVA has decided not to require all commercial marinas to
have pump-out stations. TVA also has decided not to require
retrofitting of existing pump-out facilities. Generally, with respect
to matters related to water pollution, TVA defers to other regulatory
agencies having appropriate authority to promulgate and enforce clean
water regulations. In addition to these rules, however, TVA has
implemented a Clean Marina Initiative program to encourage good
sanitation management at commercial marinas, and TVA has developed
cooperative relationships with State and Federal agencies having
jurisdiction over enforcement of marine sanitation requirements. TVA
will continue to consider ways to improve marina sanitation.
[[Page 46935]]
IV. Other Changes from the Proposed Rule
In addition to the changes made in response to public comments, the
final rule contains several minor clarifications. Also, TVA has decided
not to implement two proposed changes to the existing rules governing
hearings and appeals. The current rules provide for hearings to be held
in certain situations. TVA proposed to change the rule to provide that
a hearing would be held when requested by the applicant or any party of
record. The final rule continues existing practice under the current
rule except that it also provides for hearings to be held when directed
by the TVA Investigator (Sec. 1304.4(c)). The current and proposed
rules provide for appeals to the TVA Board of Directors by the
applicant and by any party of record. Current rules provide that
hearing notices indicate the manner in which an interested person may
become a party of record. TVA proposed to change the rule to allow
interested persons to become parties of record with right of formal
appeal even if no hearing is held. The final rule continues existing
practice under the current rule (Sec. 1304.4(b)). TVA's experience
with the section 26a application process since publication of the
proposed rule has demonstrated that continuing existing practices in
these two respects is the best way for TVA to balance competing
interests while continuing to efficiently process applications and
appeals.
V. Administrative Requirements
A. Unfunded Mandates Reform Act and Executive Orders: E.O. 12866,
Regulatory Planning and Review; E.O. 13045, Protection of Children From
Environmental Health Risks; E.O. 13132, Federalism; E.O. 13175,
Consultation and Coordination With Indian Tribal Governments; and E.O.
13211, Actions Concerning Regulations that Significantly Affect Energy
Supply, Distribution, or Use
The rule contains no Federal mandates for State, local, or tribal
governments or for the private sector. It is not a significant
regulatory action. It will not have an annual effect on the economy of
$100 million or more, and it will not result in expenditures of $100
million in any one year by State, local, and tribal governments or the
private sector. The rule will not have a substantial direct effect on
the States or Indian tribes, on the relationship between the Federal
Government and the States or Indian tribes, or on the distribution of
power and responsibilities between the Federal Government and States or
Indian tribes. Unified development and regulation of the Tennessee
River system through an approval process for obstructions in or along
the river system, and management of United States-owned land entrusted
to TVA are Federal functions for which TVA is responsible under the TVA
Act. The rule 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 system. The rule does not concern an
environmental health risk or safety risk that may disproportionately
affect children, and it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA) 5 U.S.C. 605, TVA is
required to prepare a regulatory flexibility analysis unless the TVA
Board certifies that the rule will not have a significant economic
impact on a substantial number of small entities. Small entities
include small businesses, small not-for-profit enterprises, and small
governmental jurisdictions.
The TVA Board has approved the following certification:
[T]he Board of Directors has determined and hereby certifies
that this action will not have a significant economic impact on a
substantial number of small entities within the meaning of the
Regulatory Flexibility Act.
The rule will not significantly add to the costs of any small
entity that chooses to use TVA land or construct a new obstruction in
the Tennessee River system. Existing obstructions that are permitted
under current regulations will not have to be modified to conform to
new standards. Any economic impact that will occur will not affect a
substantial number of small entities because most applications to
construct an obstruction in the Tennessee River system are submitted by
residential applicants who do not meet the definition of a small
entity.
C. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1), as added by the Small Business Regulatory
Enforcement Fairness Act of 1996, TVA has submitted a report containing
this rule and other required information to the U.S. Senate, the U.S.
House of Representatives, and the Comptroller General of the General
Accounting Office. This is not a ``major rule'' as defined by 5 U.S.C.
804(2).
D. Executive Order 12988--Civil Justice Reform
The rule does not have a retroactive effect prior to the effective
date. It does, however, incorporate into rules TVA's SMP (primarily the
standards contained in subparts C and D) that have been in effect as
internal TVA policy guidance since November 1, 1999. A number of the
rule's grandfather provisions are based on the November 1, 1999, date.
These situations are clearly identified in the rule. The rule preempts
State and local law only to the extent any such law might purport to
authorize activities on TVA land or along or in the Tennessee River
system that are inconsistent with the rule. The rule's administrative
appeal provisions must be exhausted before any action for judicial
review of a TVA permitting action may be brought against TVA. (This
assumes that such actions are subject to judicial review; nothing
herein should be construed as an admission by TVA that its permit
decisions under section 26a of the TVA Act or its decisions regarding
use of TVA land are judicially reviewable.)
E. Executive Order 12630--Governmental Actions and Interference With
Constitutionally Protected Property Rights
TVA expects that most applications to construct obstructions in or
along the Tennessee River system or engage in other activities
requiring a permit under this rule would be made in connection with
land along TVA reservoirs that is owned by TVA or is subject to a TVA
flowage easement. TVA's substantial landrights in these situations
effectively reduce the likelihood of any takings implications because,
even apart from this rule and section 26a of the TVA Act, TVA would
have the right to restrict or prohibit the requested activity. In
addition, the EIS for TVA's SMP considered the effect on property
values along and near the shoreline of TVA reservoirs of the SMP
standards incorporated into this rule, and it was determined that
property values would be higher under such standards than under any of
the other alternatives considered in the EIS.
F. Environmental Review
TVA prepared a detailed draft 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
[[Page 46936]]
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 this rule has been released, and
a record of decision has been issued. This rulemaking reflects the
involvement of the interested public during the environmental review
process. An EA was prepared and a finding of no significant impact was
issued for those aspects of the rule not addressed in the residential
shoreline development EIS. The September 20, 2000, Federal Register
notice mentioned that the EA was being prepared, and copies of the
draft EA were mailed to interested members of the public and to Federal
and State agencies in the seven-State TVA Watershed for comment.
G. Paperwork Reduction Act
Paragraphs (b), (c) and (d) of Sec. 1304.2 of this rule contain
information collection requirements which have been submitted to the
Office of Management and Budget (OMB) for approval under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. TVA provided burden information
and requested comments on these requirements in the preamble to the
proposed rule. No comments specifically directed toward the information
collection requirements were received. One commenter objected to the
general requirement to apply for and obtain a permit before conducting
vegetation management activities on TVA land. TVA responded to this
comment in the Discussion of Public Comments at III above.
The only information collection activity contained in the 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
from l hour to 1.5 hours per application. The time may vary depending
upon the nature and complexity of the proposed action. Comments
concerning the accuracy of this burden estimate and suggestions for
reducing the burden should be directed to the Agency Clearance Officer:
Wilma H. McCauley, Tennessee Valley Authority, 1101 Market Street (EB
5B), Chattanooga, Tennessee 37402-2801; (423) 751-2523.
The majority of information provided in a permit application is not
confidential. Most information collected describes construction plans
and is not of a sensitive or personal nature. However, since these
records are maintained by a personal identifier (name of applicant),
they are identified as a Privacy Act System of records. A Privacy Act
Statement is included on the permit application.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. TVA will publish a document in the
Federal Register announcing OMB's approval.
List of Subjects in 18 CFR Part 1304
Administrative practice and procedure, Natural resources,
Navigation (water), Rivers, Water pollution control.
0
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 AND OTHER ALTERATIONS
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 facilities or activities.
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 Docks, piers, and boathouses.
1304.205 Other water-use facilities.
1304.206 Requirements for community docks, piers, boathouses, or
other water-use facilities.
1304.207 Channel excavation on TVA-owned residential access
shoreland.
1304.208 Shoreline stabilization on TVA-owned residential access
shoreland.
1304.209 Land-based structures/alterations.
1304.210 Grandfathering of preexisting shoreland uses and
structures.
1304.211 Change in ownership of grandfathered structures or
alterations.
1304.212 Waivers.
Subpart D--Activities on TVA Flowage Easement Shoreland
1304.300 Scope and intent.
1304.301 Utilities.
1304.302 Vegetation management on flowage easement shoreland.
1304.303 Channel excavation.
Subpart E--Miscellaneous
1304.400 Flotation devices and material, all floating structures.
1304.401 Marine sanitation devices.
1304.402 Wastewater outfalls.
1304.403 Marina sewage pump-out stations and holding tanks.
1304.404 Commercial marina harbor limits.
1304.405 Fuel storage tanks and handling facilities.
1304.406 Removal of unauthorized, unsafe, and derelict structures or
facilities.
1304.407 Development within flood control storage zones of TVA
reservoirs.
1304.408 Variances.
1304.409 Indefinite or temporary moorage of recreational vessels.
1304.410 Navigation restrictions.
1304.411 Fish attractor, spawning, and habitat structures.
1304.412 Definitions.
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, fish attractors, shoreline stabilization projects, channel
[[Page 46937]]
excavations, and nonnavigable houseboats as defined in Sec. 1304.101.
Any person considering constructing, operating, or maintaining any such
obstruction 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 TVA-owned land alongside TVA reservoirs and to 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 (NEPA), as amended, 42 U.S.C. 4321 et seq., and the Federal
Water Pollution Control Act Amendments of 1972 (FWPCA), 33 U.S.C. 1251
et seq., 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) If the facility is to be built on TVA land, the applicant must,
in addition to the other requirements of this part, own the fee
interest in or have an adequate leasehold or easement interest of
sufficient tenure to cover the normal useful life of the proposed
facility in land immediately adjoining the TVA land. If the facility is
to be built on private land, the applicant must own the fee interest in
the land or have an adequate leasehold or easement interest in the
property where the facility will be located. TVA recognizes, however,
that in some cases private property has been subdivided in a way that
left an intervening strip of land between the upland boundary of a TVA
flowage easement and the waters of the reservoir, or did not convey to
the adjoining landowner the land underlying the waters of the
reservoir. In some of these situations, the owner of the intervening
strip or underlying land cannot be identified or does not object to
construction of water-use facilities by the adjacent landowner. In
these situations, TVA may exercise its discretion to permit the
facility, provided there is no objection from the fee owner of the
intervening strip or underlying land. A TVA permit conveys no property
interest. The applicant is responsible for locating the proposed
facility on qualifying land and ensuring that there is no objection
from any owner of such land. TVA may require the applicant to provide
appropriate verification of ownership and lack of objection, but TVA is
not responsible for resolving ownership questions. In case of a
dispute, TVA may require private parties requesting TVA action to grant
or revoke a TVA permit to obtain a court order declaring respective
land rights. TVA may exercise its discretion to permit a facility on
TVA land that is located up or downstream from the land which makes the
applicant eligible for consideration to receive a permit.
(b) Applications shall be addressed to the Tennessee Valley
Authority, at one of the following Watershed Team locations:
(1) P.O. Box 1589, Norris, TN 37828, (865) 632-1539, Reservoir:
Norris;
(2) Suite 300, 804 Highway 321, North, Lenoir City, TN 37771-6440,
(865) 988-2420, Reservoirs: Ft. Loudoun, Tellico, Fontana;
(3) 221 Old Ranger Road, Murphy, NC 28906, (704) 837-7395,
Reservoirs: Hiwassee, Chatuge, Appalachia, Blue Ridge, Nottely, Ocoee;
(4) 2611 W. Andrew Johnson Hwy., Morristown, TN 37814-3295, (865)
632-3791, Reservoirs: Cherokee, Douglas;
(5) P.O. Box 1010, Muscle Shoals, AL 35662-1010, (256) 386-2560,
Reservoirs: Tim's Ford, Normandy, Wheeler, Wilson;
(6) 202 West Blythe Street, P.O. Box 280, Paris, TN 38242, (901)
642-2026, Reservoirs: Kentucky, Beech River;
(7) P.O. Box 1010, Muscle Shoals, AL 35662-1010, (256) 386-2228,
Reservoirs: Pickwick, Bear Creek;
(8) Suite 218, Heritage Federal Bank Building, 4105 Fort Henry
Drive, Kingsport, TN 37662, (423) 239-2000, Reservoirs: Boone, Watauga,
Wilbur, Fort Patrick Henry, South Holston;
(9) 1101 Market Street, Chattanooga, TN 37402, (423) 697-6006,
Reservoirs: Chickamauga, Nickajack;
(10) 2009 Grubb Road, Lenoir City, TN 37771-6440, (865) 988-2440,
Reservoirs: Watts Bar, Melton Hill;
(11) 2325 Henry Street, Guntersville, AL 35976-1868, (256) 571-
4280, Reservoirs: Guntersville.
(c) 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 (c)(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 (other than a waiver request under
Sec. 1304.212 or Sec. 1304.300(a)) shall be regarded as an
application for a major facility. In addition to the information
required in paragraphs (c)(1) and (2) of this section, TVA may require
the applicant to provide such other information as TVA deems necessary
for adequate review of a particular application.
(1) Information required for review of minor facility. By way of
example only, minor facilities may include: boat docks, piers, rafts,
boathouses, fences, steps, and gazebos. 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) Show the elevation of the structure above the full summer pool;
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 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
[[Page 46938]]
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.
(v) 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 or applied for at the same time as or before application for
section 26a approval. The applicant shall provide TVA with copies of
any such permits or approvals that are issued.
(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 crossings, 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 larger 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 the elevations of the structure above full summer pool if
located on a TVA reservoir or above the normal high water elevation if
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 or applied for at the same time as or before application for
section 26a approval. The applicant shall provide TVA with copies of
any such permits or approvals that are issued.
(d) 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 (c) 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 the 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.
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 and
supporting materials 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) If a hearing is held for any of the reasons described in
paragraph (c) of this section, any interested person may become a party
of record by following the directions contained in the hearing notice.
(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) 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.
(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
[[Page 46939]]
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 of 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 to relevancy,
materiality, and competency. Evidence may be presented orally or by
written statement and need not be under oath. Cross-examination by
parties 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 at a hearing 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 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
[[Page 46940]]
would be inconsistent with TVA's Shoreline Management Policy. 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 facilities or
activities.
(a) When there is a change in ownership of the land on which a
permitted facility or activity is located (or ownership of the land
which made the applicant eligible for consideration to receive a permit
when the facility or activity is on TVA land), the new owner shall
notify TVA within sixty (60) days. Upon application to TVA by the new
owner, the new owner may continue to use existing facilities or carry
out permitted activities pending TVA's decision on reissuance of the
permit. TVA shall reissue the permit upon determining that the
facilities are in good repair and are consistent with the standards in
effect at the time the permit was first issued.
(b) Subsequent owners are not required to modify existing
facilities constructed and maintained in accordance with the standards
in effect at the time the permit was first issued provided they:
(1) Maintain such facilities 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 TVA reservoirs.
No new nonnavigable houseboats shall be moored, anchored, or installed
in any TVA reservoir.
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 in any TVA reservoir 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) Compliant 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 February 15,
1978, 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 proposed mooring location, 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 uses; and
(5) Maintain, protect, and enhance the quality of the human
environment.
(c) All approved nonnavigable houseboats with toilets must be
equipped as follows with a properly installed and operating Marine
Sanitation Device (MSD) or Sewage Holding Tank 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 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. 1304.400.
(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. 1304.102 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 three 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 a new location 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.
[[Page 46941]]
Subpart C--TVA-Owned Residential Access Shoreland
Sec. 1304.200 Scope and intent.
This 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 reservoir by qualifying adjacent residents.
Sec. 1304.201 Applicability.
This subpart addresses residential-related (all private,
noncommercial uses) 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
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 shoreland
classifications:
(1) TVA-owned shorelands over which the adjacent residential
landowner holds rights of ingress and egress to the water (except where
a particular activity is specifically excluded by an applicable real
estate document), including, at TVA's discretion, cases where the
applicant owns access rights across adjoining private property that
borders on and benefits from rights of ingress and egress across TVA-
owned shoreland.
(2) TVA-owned shorelands designated in current TVA Reservoir Land
Management Plans as open for consideration of residential development;
and
(3) 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.
(b) Construction of 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, this subpart C does not apply to
shoreland where TVA's property interest is 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 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 Shoreland 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 mowing of lawns established and existing before
November 1, 1999, 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 September 8, 2003) 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-use facility.
(c) The access corridor will be located to minimize removal of
trees or 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 by TVA on TVA property; provided, however, that where TVA
ownership is insufficient to establish a 50-foot-deep SMZ, the SMZ
shall consist only of all of the TVA land at the location (private land
shall not be included within the SMZ). 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 plants on a list provided
by TVA) is allowed.
(g) On TVA land situated above the SMZ, selective thinning of trees
or other vegetation under three 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 section. Mowing is allowed only within the access corridor.
(k) Planting of trees, shrubs, wildflowers, native grasses, and
ground covers within the SMZ is allowed to create, 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
on TVA-owned shoreland 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 size standards specified in
this section. Where and if site constraints at the proposed
construction location preclude a structure of the maximum size, TVA
shall determine the size of
[[Page 46942]]
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 residential 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 walkway that extends from the shore to
the structure. Access walkways 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 on Pickwick, Wilson, Wheeler,
Guntersville, and Nickajack Reservoirs shall have deck elevations at
least 18 inches above full summer pool level; facilities on all other
reservoirs, shall be a minimum of 24 inches above full summer pool.
(e) All docks, piers, and other water-use facilities must be
attached to the shore with a single 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 piers to provide shade are
allowed on all reservoirs.
(h) Docks proposed in subdivisions recorded after November 1, 1999,
must be placed at least 50 feet from the neighbors' docks. When this
density requirement cannot be met, TVA may require group or community
facilities.
(i) 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.
(j) Covered boatslips may be open or enclosed with siding.
(k) Access walkways constructed over water and internal walkways
inside of boathouses shall not exceed six feet in width.
(l) Enclosed space shall be used solely for storage of water-use
equipment. The outside dimensions of any completely enclosed storage
space shall not exceed 32 square feet and must be located on an
approved dock, pier, or boathouse.
(m) 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.
(n) Except for nonnavigable houseboats approved in accordance with
subpart B of this part, toilets and sinks are not permitted on water-
use facilities.
(o) Covered docks, boatslips, and boathouses shall not exceed one
story in height.
(p) Second stories on covered docks, piers, boatslips, or
boathouses may be constructed as open decks with railing, but shall not
be covered by a roof or enclosed with siding or screening.
(q) In congested areas or in other circumstances deemed appropriate
by TVA, TVA may require an applicant's dock, pier, or boathouse to be
located on an area of TVA shoreline not directly fronting the
applicant's property.
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 corridor.
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 such as stoves, refrigerators, freezers,
and microwave ovens are not permitted on docks, piers, or boathouses.
(e) Mooring buoys/posts may be permitted provided the following
requirements are met.
(1) Posts and buoys shall be placed in such a manner that in TVA's
judgment they would not create a navigation hazard.
(2) Mooring posts must be a minimum 48 inches in height above the
full summer pool elevation of the reservoir or higher as required by
TVA.
(3) Buoys must conform to the Uniform State Waterway Marking
system.
(f) Structures shall not be wider than the width of the lot.
(g) In congested areas, TVA may establish special permit conditions
requiring dry-docking of floating structures when a reservoir reaches a
specific drawdown elevation to prevent these structures from
interfering with navigation traffic, recreational boating access, or
adjacent structures during winter drawdown.
(h) Closed loop heat exchanges for residential heat pump
application may be approved provided they are installed five feet below
minimum winter water elevation and they utilize propylene glycol or
water. All land-based pipes must be buried within the access corridor.
Sec. 1304.206 Requirements for community docks, piers, boathouses, 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 preclude approval of
individual docks, piers, or boathouses.
(2) When individual water-use facilities are not allowed, no more
than one slip for each qualified applicant will be approved for any
community facility. TVA shall determine the location of the facility
and the named permittees, taking into consideration the preferences of
the qualified applicants and such other factors as TVA determines to be
appropriate.
(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/or a boat launching ramp, if the site, in TVA's
judgment, will accommodate such development.
(b) Private and community facilities at jointly-owned community
outlots:
(1) Applications for private or community facilities to be
constructed at a jointly-owned community outlot must be submitted
either with 100 percent concurrence of all co-owners of such lot, or
with concurrence of the authorized representatives of a State-chartered
homeowners association with the authority to manage the common lot on
behalf of all persons having an interest in such lot. If the community
facility will serve five or more other lots, the application must be
submitted by the authorized representatives of such an association. TVA
considers an association to have the necessary authority to manage the
common lot if all co-owners are eligible for membership in the
association and a majority are members. TVA may request the association
to provide satisfactory evidence of its authority.
[[Page 46943]]
(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 having the right to use the
community outlot;
(v) Water depths fronting the community lot;
(vi) Commercial and private vessel navigation uses and restrictions
in the vicinity of the community lot;
(vii) Recreational carrying capacity for water-based activities in
the vicinity of the community lot, and
(viii) Other site specific conditions and considerations 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 reservoir.
(c) TVA may approve community facilities that are greater in size
than 1000 square feet. In such circumstances, TVA also may establish
harbor limits.
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 three-foot water depths
for navigation of the vessel at the minimum winter water 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
reservoir drawdown periods.
(g) Channel excavations must be accomplished during the reservoir
drawdown when the reservoir bottom is exposed and dry.
(h) Spoil material from channel excavations must be placed in
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 on TVA-owned residential access
shoreland.
TVA may issue permits allowing adjacent residential landowners to
stabilize eroding shorelines on TVA-owned residential access shoreland.
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 may 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 TVA-approved wall on the lot or to an adjacent
owner's TVA-approved 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 (unless determined by TVA
to be of adequate size and integrity), 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 full summer
pool water. 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 Land-based structures/alterations.
(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 and facilities such as
picnic pavilions, gazebos, satellite antennas, septic tanks, and septic
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, poles, electrical panel, and wiring must be
installed:
(i) In a way that would not be hazardous to the public or interfere
with TVA operations;
(ii) Solely to serve water-use facilities, and
(iii) In compliance with all State and local electrical codes
(satisfactory evidence of compliance to be provided to TVA upon
request).
(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.
(3) TVA's issuance of a permit does not mean that TVA has
determined the facilities are safe for any purpose or that TVA has any
duty to make such a determination.
(d) Fences crossing TVA residential access shoreland may be
considered only where outstanding agricultural rights or fencing rights
exist and the land is used for agricultural purposes. Fences must have
a built-in means for easy pedestrian passage by the public and they
must be clearly marked.
[[Page 46944]]
Sec. 1304.210 Grandfathering of preexisting shoreland uses and
structures.
In order to provide for a smooth transition to new standards,
grandfathering provisions shall apply as follows to preexisting
development and shoreland uses established prior to November 1, 1999,
which are located along or adjoin TVA-owned access residential
shoreland.
(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 permitted 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 lawns established on TVA-owned residential access
shoreland prior to November 1, 1999, may be continued without regard to
whether the lawn uses are authorized by a TVA permit.
(2) At sites where mowing of lawns established prior to November 1,
1999, 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 lawns established prior to November 1, 1999) requires TVA's
approval in accordance with Sec. 1304.203. Removal of trees greater
than three inches in diameter at ground level is not allowed.
Sec. 1304.211 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 Sec. 1304.10
regarding notice to TVA.
(b) The new owner may, upon application to TVA for a permit,
continue to use existing permitted docks and other shoreline
alterations pending TVA action on the application.
(c) Subsequent owners are not required to modify to new standards
existing shoreline alterations constructed and maintained in accordance
with the standards in effect at the time the previous permit was first
issued, and they may continue mowing established lawns that existed
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 structures 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 (except for mowing of lawns established prior to
November 1, 1999).
Sec. 1304.212 Waivers.
(a) Waivers of standards contained in this subpart may be requested
when the following minimum criteria are established:
(1) The property is within a preexisting development (an area where
shoreline development existed prior to November 1, 1999); and
(2) The proposed shoreline alterations are 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 the standards of this subpart C, TVA
will consider 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
November 1, 1999.
Subpart D--Activities on TVA Flowage Easement Shoreland
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 of this part, which shall
apply as follows:
(a) All of Sec. 1304.212 shall apply.
(b) Sections 1304.200, 1304.203, 1304.207, and 1304.209 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 1304.204 shall apply except that the ``50 feet''
trigger of paragraph (i) of that section shall not apply. TVA may
impose appropriate requirements to ensure accommodation of neighboring
landowners.
(f) Section 1304.205 shall apply except that the facilities
described in paragraph (a) are not limited to locations within an
access corridor.
(g) Section 1304.206 shall apply except for paragraph (b)(3).
(h) Section 1304.208 shall apply except that TVA approval shall not
be required to conduct the activities described in paragraph (a).
(i) Section 1304.210 shall apply except for paragraph (d).
(j) Section 1304.211 shall apply except to the extent that it would
restrict mowing or other vegetation management.
(k) 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 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, poles, electrical panels, and wiring shall be
installed:
(1) In a way that would not be hazardous to the public or interfere
with TVA operations; and
(2) In compliance with all State and local electrical codes
(satisfactory evidence of compliance to be provided to TVA upon
request).
(b) Electrical service shall be installed with an electrical
disconnect that is located above the 500-year floodplain or the flood
risk profile, whichever is higher, and is accessible during flood
events.
(c) TVA's issuance of a permit does not mean that TVA has
determined the facilities are safe for any purpose or that TVA has any
duty to make such a determination.
Sec. 1304.302 Vegetation management on flowage easement shoreland.
Removal, modification, or establishment of vegetation on privately-
owned shoreland subject to a TVA flowage easement 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. 1304.303 Channel excavation.
(a) Channel excavation of privately-owned reservoir bottom subject
to a
[[Page 46945]]
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 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 Flotation devices and material, all floating
structures.
(a) All flotation for docks, boat mooring buoys, and other water-
use structures and facilities, shall be of materials commercially
manufactured for marine use. Flotation materials shall be fabricated so
as not to become water-logged, 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 floatation must be fully encased. Reuse of plastic,
metal, or other previously used drums or 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 September 8, 2003) in compliance with
previous rules 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
September 8, 2003, 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 specifically designed for marine
applications (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. 1304.401 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, including the FWPCA and regulations issued
thereunder, and, where applicable, statutes and regulations governing
``no discharge'' zones.
Sec. 1304.402 Wastewater outfalls.
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.
Sec. 1304.403 Marina sewage pump-out stations and holding tanks.
All pump-out facilities constructed after September 8, 2003 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 severed;
(e) 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;
(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; and
(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 reservoir.
Sec. 1304.404 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, carrying capacity of the
reservoir area in the vicinity of the marina, and on the basis of the
environmental effects associated with the use of the harbor. Mooring
buoys, slips, breakwaters, and permanent anchoring are prohibited
beyond the lakeward extent of harbor limits. TVA may, at its
discretion, reconfigure harbor limits based on changes in
circumstances, including but not limited to, changes in the ownership
of the land base supporting the marina.
Sec. 1304.405 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
[[Page 46946]]
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 September 8, 2003 to install an UST or any part of an
UST system below the 500-year flood elevation on a TVA reservoir, or
regulated tailwater:
(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 paragraphs (a) and
(b) of this section 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) Floating fuel handling facilities. TVA will not approve the
installation of any floating fuel handling facility or fuel storage
tank.
(f) 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. 1304.406 Removal of unauthorized, unsafe, and derelict
structures or facilities.
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 this part and 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 may 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. 1304.407 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 Executive 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 shall 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
[[Page 46947]]
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 shall 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 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. 1304.408 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 that varies from the requirements of
this part in minor aspects.
Sec. 1304.409 Indefinite or temporary moorage of recreational
vessels.
(a) Recreational vessels' moorage at unpermitted locations along
the water's edge of any TVA reservoir 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
reservoir.
(d) Permanent or extended moorage of a recreational vessel along
the shoreline of any TVA reservoir without approval under section 26a
of the TVA Act is prohibited.
Sec. 1304.410 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 established for commercial
navigation.
(b) Structures shall not be located in such a way as to block the
visibility of navigation aids. Examples of navigation aids are lights,
dayboards, and directional signs.
(c) 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.
Sec. 1304.411 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. 1304.412 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 that 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.
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, subdivision covenant, or recorded
plat as available for use by designated 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 owner's dock, pier,
boathouse, or boatwells.
Full summer pool means the targeted elevation to which TVA plans to
fill each reservoir during its annual operating cycle. Applicants are
encouraged to consult the appropriate TVA Watershed Team or the TVA
website to obtain the full summer pool elevation for the reservoir in
question at the time the application is submitted.
Land-based structure means any structure constructed on ground
entirely
[[Page 46948]]
above the full summer pool elevation of a TVA reservoir but below the
maximum shoreline contours of that reservoir.
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.
Owner or landowner ordinarily means all of the owners of a parcel
of land. Except as otherwise specifically provided in this part, 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 not be considered, by virtue of such fractional interest or
interests only, to be an owner and as such eligible to seek approval to
conduct the activity without the consent of the other co-owners. In
cases where the applicant owns water access rights across adjoining
private property that borders TVA-owned shoreland, TVA may exercise its
discretion to consider such person an owner, taking into account the
availability of the shoreline to accommodate similarly situated owners
and such other factors as TVA deems to be appropriate. In subdivisions
where TVA had an established practice prior to September 8, 2003 of
permitting individual or common water-use facilities on or at jointly-
owned lots without the consent of all co-owners, TVA may exercise its
discretion to continue such practice, taking into account the
availability of the shoreline to accommodate similarly situated owners
and other factors as TVA deems to be appropriate; provided, however,
that the issuance of a TVA permit conveys no property interests, and
the objections of a co-owner may be a basis for revocation of the
permit.
Shoreland means the surface of land lying between minimum winter
pool elevation of a TVA reservoir and the maximum shoreline contour.
Shoreline means the line where the water of a TVA reservoir meets
the shore when the water level is at the full summer pool elevation.
Shoreline Management Zone (SMZ) means a 50-foot-deep vegetated zone
designated by TVA on TVA-owned land.
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.
Dated: July 31, 2003.
Kathryn J. Jackson,
Executive Vice President, River Systems Operations and Environment,
Tennessee Valley Authority.
[FR Doc. 03-20078 Filed 8-6-03; 8:45 am]
BILLING CODE 8120-08-P