[Federal Register Volume 78, Number 249 (Friday, December 27, 2013)]
[Rules and Regulations]
[Pages 78717-78720]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-31078]



[[Page 78717]]

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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 207


Reservoirs at Headwaters of the Mississippi River; Use and 
Administration

AGENCY: U.S. Army Corps of Engineers, DoD.

ACTION: Final rule.

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SUMMARY: The U.S. Army Corps of Engineers is amending the rules 
regarding use and administration of the reservoirs at the headwaters of 
the Mississippi River by deleting from the Code of Federal Regulations 
all references to minimum discharges and to operating limits for the 
reservoirs. Following extensive public input and environmental review, 
the St. Paul District of the Corps of Engineers recently adopted an 
updated operating plan for the Mississippi River Headwaters reservoirs 
containing minimum flow values that differ from those currently 
codified in the Code of Federal Regulations. Deleting all references to 
minimum flows in the regulations will eliminate the current discrepancy 
between the regulations and the approved operating plan for the 
reservoirs. The operating limits are also contained in the operating 
plan for the reservoirs, and eliminating both the minimum flow values 
and the operating limits from the rule will make it unnecessary to 
amend the regulations each time the values are modified in the 
operating plan in the future.

DATES: Effective Date: January 27, 2014.

FOR FURTHER INFORMATION CONTACT: Headquarters, Engineering and 
Construction Community of Practice, Washington, DC at 202-761-4922, or 
Mr. Kenton Spading, U.S. Army Corps of Engineers, St. Paul District, at 
651-290-5623.

SUPPLEMENTARY INFORMATION:

Executive Summary

    The purpose of this action is to amend the current rule regarding 
minimum discharges and minimum operating limits of the reservoirs at 
the headwaters of the Mississippi River to ensure that the regulations 
do not conflict with the current operating plan for those reservoirs.
    The Corps' authority to amend the minimum flow values and minimum 
operating limits for the reservoirs of the headwaters of the 
Mississippi River is Section 7 of the Rivers and Harbors Act of 1917 
(40 Stat. 266; 33 U.S.C. 1) and Section 216 of the Flood Control Act of 
1970 (84 Stat. 1830; 33 U.S.C. 549a).

Background

    The Rivers and Harbors Acts of June 14, 1880, and August 2, 1882, 
authorized the construction of dams at each of the six Mississippi 
River Headwaters lakes for the purpose of augmenting Mississippi River 
flow for navigation. The lakes affected by these acts are 
Winnibigoshish, Leech, Pokegama, Sandy, Cross (Pine River), and Gull. 
Following authorization of the reservoirs, the Secretary of War 
prescribed regulations governing operation of the reservoirs on 
February 11, 1931, which were codified at 33 CFR 207.340. The current 
regulations list minimum discharges for each reservoir at 33 CFR 
207.340(d)(2). The current regulations also list minimum operating 
limits, or the lowest level at which the Corps may operate each 
reservoir, at 33 CFR 207.340(d)(7).
    The Corps' procedure adopting and publishing regulations related to 
reservoirs has changed since the aforementioned regulations were 
originally codified in 1931. The present-day practice is to include 
minimum flow values, operating limits and other related information in 
Water Control Manuals that are adopted following an extensive public 
and environmental review process, as outlined in Engineer Regulation 
(ER) 1110-2-240. Moreover, the operating limits in the Water Control 
Manuals prescribe not only the minimum level at which a reservoir may 
operate but also the absolute upper limit on reservoir operations, 
effectively providing a band within which the Corps may operate a 
reservoir.
    As a precursor to updating the Water Control Manuals for the 
Mississippi River Headwaters reservoirs in 2009, we completed a study 
known as the Mississippi River Headwaters Reservoir Operating Plan 
Evaluation (ROPE). The primary purpose of the ROPE was to evaluate 
alternative operating plans for the Headwaters reservoirs in an attempt 
to improve the operation of the system while balancing tribal trust 
obligations, flood risk reduction, environmental concerns, water 
quality, water supply, recreation, navigation, hydropower, and other 
public interests.
    On January 19, 2010, after thoroughly assessing potential 
environmental impacts and involving the public in the process, the 
District Engineer for the St. Paul District signed a Record of Decision 
approving the ROPE's recommended operating plan for the Headwaters 
reservoirs. The ROPE's recommended plan adopts minimum discharges that 
were scientifically developed using a habitat in-stream flow analysis 
(Tenant 1976), as described in the ROPE. The minimum discharges in the 
ROPE's recommended plan differ from the minimum discharges listed in 33 
CFR 207.340 as it is currently written. We are in the process of 
updating the Water Control Manuals for the Headwaters reservoirs to 
implement the recommendations from the 2009 ROPE. Once the Water 
Control Manuals are revised, the minimum discharge values in the 
revised Water Control Manuals will also be in conflict with 33 CFR 
207.340 if the regulation is not amended. Table No. 1 illustrates the 
differences between the current regulations and the 2009 ROPE study 
minimum flows.

                                     Table 1--Mississippi River Headwater Reservoir System Operating Limits and CFR
                                                             Versus ROPE Minimum Discharges
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                    Winnibigoshish           Leech             Pokegama              Sandy         Cross L. Pine R.          Gull
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Operating Limit...........  1294.94-1303.14...  1292.70-1297.94...  1270.42-1278.42...  1214.31-1221.31...  1225.32-1235.30...  1192.75-1194.75.
Minimum Flow: 33 CFR Sec.         150 cfs...........  70 cfs............  200 cfs...........  80 cfs............  90 cfs............  30 cfs.
 207.340.
Minimum Flow: 2009 ROPE.........  >= 1294.94 100 cfs  >= 1292.70 120 cfs  >= 1273.17 200 cfs  >= 1214.31 20 cfs   >= 1225.32 30 cfs   >= 1192.75 20 cfs
                                   < 1294.94 50 cfs.   < 1292.70 60 cfs.   < 1273.17 Sum of    < 1214.31 10 cfs.   < 1225.32 15 cfs.   < 1192.75 10 cfs
                                                                           Flow From Winni-
                                                                           bigoshish plus
                                                                           Leech.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The Mississippi River Headwaters proposed rule change was published 
for review and comment in the Federal Register on July 15, 2013 (78 FR 
42030). The regulations.gov docket number was COE-2013-0008. No 
comments were

[[Page 78718]]

received by the end of the review and comment period on September 13, 
2013.
    We are amending the regulations to delete all references to minimum 
flows to eliminate any conflict between the regulations and the Water 
Control Manuals that guide operations at the Mississippi River 
Headwaters reservoirs. We are removing the minimum operating limits 
from the regulations. Any future changes to the minimum flows or the 
operating limits of the Headwaters reservoirs will be handled through 
revisions to the Water Control Manuals, which will be accomplished in 
accordance with the guidance provided in ER 1110-2-240 after public 
input and any necessary environmental reviews. The change to the rule 
will eliminate the necessity of amending the Code of Federal 
Regulations each time a Water Control Manual is updated.

Administrative Requirements

Plain Language

    In compliance with the principles in the President's Memorandum of 
June 1, 1998, (63 FR 31855) regarding plain language, this preamble is 
written using plain language. The use of ``we'' in this notice refers 
to the Corps. We have also used the active voice, short sentences, and 
common everyday terms except for necessary technical terms.

Paperwork Reduction Act

    This action will not impose any new information collection burden 
under the provisions of the Paperwork Production Act (44 U.S.C. 3501 et 
seq.). The modification would eliminate minimum flow values and 
operating limits from the rule. Since the rule does not involve any 
additional collection of information from the public, this action is 
not subject to the Paperwork Reduction Act.

Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Corps must determine whether the regulatory action is ``significant'' 
and therefore subject to review by OMB and the requirements of the 
Executive Order. The Executive Order defines ``significant regulatory 
action'' as one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, we have determined 
that the rule is not a ``significant regulatory action'' because it 
does not meet any of these four criteria. The rule modifies the 
regulations to be consistent with an approved, updated operating plan 
for the Mississippi River Headwaters reservoirs.

Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires the Corps to develop an accountable process to 
ensure ``meaningful and timely input by State and local officials in 
the development of regulatory policies that have Federalism 
implications.'' The phrase ``policies that have Federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.''
    The rule does not have Federalism implications. We do not believe 
that amending the regulation to eliminate references to minimum flow 
values and operating limits for the Mississippi River Headwaters 
reservoirs will have substantial direct effects on the States, on the 
relationship between the Federal government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. The rule does not impose new substantive requirements. In 
addition, the changes will not impose any additional substantive 
obligations on State or local governments. Therefore, Executive Order 
13132 does not apply to this rule.

Regulatory Flexibility Act, as Amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq.

    The Regulatory Flexibility Act generally requires an agency to 
prepare a regulatory flexibility analysis of any rule subject to 
notice-and-comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations and small governmental jurisdictions.
    For purposes of assessing the impacts of this rule on small 
entities, a small entity is defined as: (1) A small business based on 
Small Business Administration size standards; (2) a small governmental 
jurisdiction that is a government of a city, county, town, school 
district, or special district with a population of less than 50,000; or 
(3) a small organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of the rule on small 
entities, we believe that this action will not have a significant 
economic impact on a substantial number of small entities. The rule is 
consistent with current agency practice, does not impose new 
substantive requirements, and therefore would not have a significant 
economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under Section 202 of the UMRA, the 
agencies generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal 
mandates'' that may result in expenditures to State, local, and Tribal 
governments, in the aggregate, or to the private sector, of $100 
million or more in any one year. Before promulgating a rule for which a 
written statement is needed, Section 205 of the UMRA generally requires 
the agencies to identify and consider a reasonable number of regulatory 
alternatives and adopt the least costly, most cost-effective, or least 
burdensome alternative that achieves the objectives of the rule. The 
provisions of section 205 do not apply when they are inconsistent with 
applicable law. Moreover, section 205 allows an agency to adopt an 
alternative other than the least costly, most cost-effective, or least 
burdensome alternative if the agency publishes with the final rule an 
explanation why that alternative was not adopted. Before an agency 
establishes any regulatory requirements that may significantly or 
uniquely affect small governments, including Tribal governments, it 
must have developed, under Section 203 of the UMRA, a small government 
agency plan. The plan must provide for notifying potentially

[[Page 78719]]

affected small governments, enabling officials of affected small 
governments to have meaningful and timely input in the development of 
regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising small governments on 
compliance with the regulatory requirements.
    We have determined that the rule does not contain a Federal mandate 
that may result in expenditures of $100 million or more for State, 
local, and Tribal governments, in the aggregate, or the private sector 
in any one year. The rule is consistent with current agency practice, 
does not impose new substantive requirements and therefore does not 
contain a Federal mandate that may result in expenditures of $100 
million or more for State, local, and Tribal governments, in the 
aggregate, or the private sector in any one year. Therefore, the rule 
is not subject to the requirements of Sections 202 and 205 of the UMRA. 
For the same reasons, we have determined that the rule contains no 
regulatory requirements that might significantly or uniquely affect 
small governments. Therefore, the rule is not subject to the 
requirements of Section 203 of UMRA.

Executive Order 13045

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies 
to any rule that: (1) is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that we have reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, we must evaluate the environmental health or 
safety effects of the rule on children, and explain why the regulation 
is preferable to other potentially effective and reasonably feasible 
alternatives.
    The rule is not subject to this Executive Order because it is not 
economically significant as defined in Executive Order 12866. In 
addition, it does not concern an environmental or safety risk that we 
have reason to believe may have a disproportionate effect on children.

Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires agencies to develop an accountable process to ensure 
``meaningful and timely input by tribal officials in the development of 
regulatory policies that have tribal implications.'' The phrase 
``policies that have tribal implications'' is defined in the Executive 
Order to include regulations that have ``substantial direct effects on 
one or more Indian tribes, on the relationship between the Federal 
government and the Indian tribes, or on the distribution of power and 
responsibilities between the Federal government and Indian tribes.''
    The rule does not have tribal implications. It will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and the Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes. It is generally consistent with current 
agency practice and does not impose new substantive requirements. 
Therefore, Executive Order 13175 does not apply to this rule.

Environmental Documentation

    The purpose of this rule is to make the Code of Federal Regulations 
consistent with the current operating plan for the Mississippi River 
Headwaters Reservoirs. This action is solely administrative in nature. 
There is no intended change in the use or operation of the reservoirs 
as a result of this action. The substantive change in reservoir 
operations has already occurred as a consequence of the adoption of an 
updated operating plan, as approved in the Record of Decision for 
Mississippi River Headwaters Reservoir Operating Plan Evaluation dated 
January 19, 2010. The potential environmental impacts of the updated 
operating plan were thoroughly assessed in the Final Integrated 
Reservoir Operating Plan Evaluation and Environmental Impact Statement 
dated September 2009. Because the present action is merely 
administrative and an environmental analysis was completed at the time 
the substantive changes to the operating plan were adopted, no 
additional environmental documentation will be required at this time.

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. We will submit 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 United States. A 
major rule cannot take effect until 60 days after it is published in 
the Federal Register. The rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

Executive Order 12898

    Executive Order 12898 requires that, to the greatest extent 
practicable and permitted by law, each Federal agency must make 
achieving environmental justice part of its mission. Executive Order 
12898 provides that each Federal agency conduct its programs, policies, 
and activities that substantially affect human health or the 
environment in a manner that ensures that such programs, policies, and 
activities do not have the effect of excluding persons (including 
populations) from participation in, denying persons (including 
populations) the benefits of, or subjecting persons (including 
populations) to discrimination under such programs, policies, and 
activities because of their race, color, or national origin.
    The rule is not expected to negatively impact any community, and 
therefore is not expected to cause any disproportionately high and 
adverse impacts to minority or low-income communities.

Executive Order 13211

    The rule is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001) because it is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy. The 
proposed rule is consistent with current agency practice, does not 
impose new substantive requirements and therefore will not have a 
significant adverse effect on the supply, distribution, or use of 
energy.

List of Subjects in 33 CFR Part 207

    Navigation (water), Penalties, Reporting and recordkeeping 
requirements, Waterways.

    Dated: December 20, 2013.
James R. Hannon,
Chief, Operations and Regulatory.

    For the reasons stated in the preamble, the Corps amends 33 CFR 
part 207 as follows:

PART 207--NAVIGATION REGULATIONS

0
1. The authority citation for part 207 continues to read as follows:



[[Page 78720]]


    Authority: 40 Stat. 266 (33 U.S.C. 1).


0
2. Revise Sec.  207.340 to read as follows:


Sec.  207.340  Reservoirs at headwaters of the Mississippi River; use 
and administration.

    (a) Description. These reservoirs include Winnibigoshish, Leech 
Lake, Pokegama, Sandy Lake, Pine River and Gull Lake.
    (b) Penalties. The River and Harbor Act approved August 11, 1888 
(25 Stat. 419, 33 U.S.C. 601) includes the following provisions as to 
the administration of the headwater reservoirs:
    And it shall be the duty of the Secretary of War to prescribe such 
rules and regulations in respect to the use and administration of said 
reservoirs as, in his judgment, the public interest and necessity may 
require; which rules and regulations shall be posted in some 
conspicuous place or places for the information of the public. And any 
person knowingly and willfully violating such rules and regulations 
shall be liable to a fine not exceeding five hundred dollars, or 
imprisonment not exceeding six months, the same to be enforced by 
prosecution in any district court of the United States within whose 
territorial jurisdiction such offense may have been committed.
    (c) Previous regulations now revoked. In accordance with the above 
act, the Secretary of War prescribed regulations for the use and 
administration of the reservoirs at the headwaters of the Mississippi 
River under date of February 11, 1931, which together with all 
subsequent amendments are hereby revoked and the following substituted 
therefor.
    (d) Authority of officer in charge of the reservoirs. The 
accumulation of water in, and discharge of water from the reservoirs, 
including that from one reservoir to another, shall be under the 
direction of the U.S. District Engineer, St. Paul, Minnesota, and of 
his authorized agents subject to the following restrictions and 
considerations:
    (1) Notwithstanding any other provision of this section, the 
discharge from any reservoir may be varied at any time as required to 
permit inspection of, or repairs to, the dams, dikes or their 
appurtenances, or to prevent damage to lands or structures above or 
below the dams.
    (2) During the season of navigation on the upper Mississippi River, 
the volume of water discharged from the reservoirs shall be so 
regulated by the officer in charge as to maintain as nearly as 
practicable, until navigation closes, a sufficient stage of water in 
the navigable reaches of the upper Mississippi and in those of any 
tributary thereto that may be navigated and on which a reservoir is 
located.
    (e) Passage of logs and other floating bodies. Logs and other 
floating bodies may be sluiced or locked through the dams, but prior 
authority for the sluicing of logs must be obtained from the District 
Engineer when this operation necessitates a material change in 
discharge.
    (f) Obstructions to flow of water. No person shall place floating 
bodies in a stream or pond above or below a reservoir dam when, in the 
opinion of the officer in charge, such act would prevent the necessary 
flow of water to or from such dam, or in any way injure the dam and its 
appurtenances, its dikes and embankments; and should floating bodies 
lying above or below a dam constitute at any time an obstruction or 
menace as beforesaid, the owners of said floating bodies will be 
required to remove them immediately.
    (g) Trespass. No one shall trespass on any reservoir dam, dike, 
embankment or upon any property pertaining thereto.
[FR Doc. 2013-31078 Filed 12-26-13; 8:45 am]
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