[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

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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