[Federal Register Volume 81, Number 169 (Wednesday, August 31, 2016)]
[Rules and Regulations]
[Pages 59846-59849]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-20093]


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TENNESSEE VALLEY AUTHORITY

18 CFR Part 1304


When Obstructions on Certain Tributaries of the Tennessee River 
Do Not Require a Section 26a Permit from the Tennessee Valley Authority

AGENCY: Tennessee Valley Authority.

ACTION: Interpretive Rule.

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SUMMARY: The Tennessee Valley Authority (TVA) is issuing guidance 
stating that certain structures, while obstructions across, along, or 
in certain tributaries of the Tennessee River, do not need a Section 
26a permit from TVA, because they have an indiscernible effect on 
navigation, flood control or public lands or reservations.

DATES: Effective August 31, 2016.

FOR FURTHER INFORMATION CONTACT: Rebecca C. Tolene, Vice President, 
Natural Resources, Tennessee Valley Authority, Knoxville, Tennessee 
(865-632-4433).

SUPPLEMENTARY INFORMATION: 

I. Legal Authority

    This interpretive rule is promulgated under the authority of the 
TVA Act, as amended, 16 U.S.C. 831-831ee.

II. Background

    Section 26a of the TVA 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 across, along, or in the 
Tennessee River or any of its tributaries. 16 U.S.C. 831y-1 (2012). 
TVA's rules governing such approval are codified at 18 CFR part 1304. 
The rules include a permitting process whereby applicants may request 
from TVA a permit for various structures such as boat docks, piers, 
shoreline stabilization projects, dams, and bridges, all of which 
qualify as ``obstructions'' under TVA's regulations. An obstruction is 
generally any man-made physical condition that during its continuance 
after completion impounds, checks, hinders, restricts, retards, 
diverts, or otherwise interferes with the movement of water or of 
objects on or in the water. Over the years, TVA has found that certain 
obstructions because of their location, the nature of their 
construction, or both have not discernibly interfered with the 
operation or management of the TVA reservoir system. In particular, 
this has occurred at locations across, along, or in certain tributary 
reaches that are upstream of the control or influence of TVA's 
reservoir system operations. For the purpose of this rule, these are 
called upstream tributary reaches. At these locations, certain 
obstructions have an indiscernible impact on water surface elevations 
in the reservoir system or the flow or volume of water entering the 
reservoir system and thereby do not materially interfere with TVA's 
flood control or navigation responsibilities. Furthermore, at these 
locations, TVA does not typically own property and therefore 
construction does not affect or interfere with the management of TVA's 
property. These obstructions include, but are not limited to, stream 
bank stabilization, bridges and culverts, stream crossings, fences, 
launching ramps, boat docks, piers, and certain fills and intakes. For 
these reasons, TVA has determined that certain obstructions do not 
require approval pursuant to Section 26a of the TVA Act when located 
across, along, or in an upstream tributary reach of the Tennessee 
River.
    Conversely, based on years of permitting experience, TVA has found 
that other obstructions across, along, or in upstream tributary reaches 
do potentially interfere with the management of TVA's reservoir system. 
These include, but are not limited to, structures such as dams, 
impoundments, interbasin transfers and certain water intakes. TVA will 
continue to require approval of these and other obstructions not set 
forth in Section III of this Interpretive Rule, when located across, 
along, or in an upstream tributary reach.
    The Tennessee River has a 41,000-square-mile drainage basin. 
Thousands of miles of upstream tributary reaches ultimately flow into 
the Tennessee River, making it impractical to identify each upstream 
tributary reach in this rule. For the purpose of this rule, upstream 
tributary reaches do not include the following:
    (1) The Tennessee River;
    (2) TVA reservoirs, (TVA reservoirs are listed in Table 1);
    (3) stream reaches within a TVA reservoir, the 500-year floodplain 
of the Tennessee River, or both;
    (4) stream reaches downstream of a TVA dam (these reaches are 
listed in Table 2); and
    (5) stream reaches where TVA owns property (whether fee-owned 
property or other property right, such as a right to flood) in or 
adjacent to the reach (including property adjacent to a TVA reservoir 
or downstream of a TVA dam).
    TVA will continue to review the proposed construction of 
obstructions located across, along, or in the above-listed five 
categories of reservoirs and reaches. These reservoirs and stream 
reaches are controlled or influenced by the operation of TVA's 
reservoir system. As discussed in more detail below, individual members 
of the public are encouraged to contact a TVA representative for help 
in determining whether their location is across, along, or in a 
reservoir or stream reach in the above-listed five categories or 
across, along, or in an upstream tributary reach.

III. Scope of Interpretive Rule

    TVA hereby clarifies that, going forward, the construction of the 
following obstructions across, along, or in an upstream tributary reach 
of the Tennessee River, does not require a Section 26a permit from TVA:
    (a) Stream bank, bed, or channel stabilization structures--Natural 
or man-made obstructions to stabilize and protect banks, beds, or 
channels of streams or excavated channels (e.g., vegetation, riprap, 
gabions, fiber rolls, stacked rock, retaining walls, etc.);
    (b) Stream restoration, enhancement, relocation, or treatment 
structures--Natural or man-made obstructions for relocating a stream or 
for restoring or improving the stream's function (e.g., weirs or sills, 
boulders, wing deflectors, log, brush, rock, trees, fill, etc.);

[[Page 59847]]

    (c) Bridges and culverts including riprap or other stabilization 
necessary for their construction;
    (d) Stream crossings--A stabilized area or a structure (culvert, 
bridge, or fill) constructed across a stream to provide a travel-way 
for people, livestock, equipment, or vehicles, including riprap or 
other stabilization necessary for their construction;
    (e) Fences, playgrounds, picnic tables, benches, grills, and other 
recreational structures;
    (f) Launching ramps and marine railways;
    (g) Buoys;
    (h) Docks, piers, and other water-use facilities;
    (i) Decks, gazebos, patios, and other open structures;
    (j) Enclosed land-based structures;
    (k) Water intakes with a combined peak withdrawal of less than 
50,000 gallons per day (0.08 cubic feet per second) and having a pipe 
diameter less than 6 inches;
    (l) Towers, poles, electrical panels, satellite antennas, service 
lights, signs, and their anchors and foundations;
    (m) Outfall structures;
    (n) Underground, submarine, or aerial utility pipes and lines and 
their support structures, anchors or foundations;
    (o) Causeways, roads, driveways, and parking lots;
    (p) Grading and fill not involving the construction of a dam or 
impoundment.
    Those considering construction of one or more of the above-listed 
obstructions across, along, or in an upstream tributary reach as 
defined in this rule are not required to submit an application or 
design drawings to TVA for approval of a Section 26a permit.
    Members of the public are responsible for knowing whether their 
proposed construction project is located across, along, or in an 
upstream tributary reach or on TVA property. If your proposed 
obstruction is located on TVA property, in addition to a Section 26a 
permit for the obstruction, approval from TVA to use the property may 
be required. TVA encourages members of the public to seek TVA's help in 
identifying whether a Section 26a permit or TVA approval to use its 
property is necessary. For more information or assistance in 
determining whether your project requires a Section 26a permit, contact 
TVA at 1-800-882-5263 or visit TVA's Web site at tva.com.
    Except as it applies to TVA's regulations implementing Section 26a, 
this interpretive rule is not a substitute for the requirements of any 
federal, state, or local statute, regulation, ordinance, or code, 
including, but not limited to, applicable building codes, now in effect 
or hereafter enacted.
    This guidance reflects TVA's current judgment on the types of 
obstructions that either individually or cumulatively do not affect 
navigation, flood control, or public lands or reservations across, 
along, or in an upstream tributary reach of the Tennessee River. TVA 
may refine this guidance, if circumstances warrant, in a future Federal 
Register notice. This guidance has no effect on whether a permit is 
required by other federal or state agencies.

IV. Definitions

Fee-owned property--Real property owned in fee by the United States 
of America in the custody and control of TVA.
Property--Fee-owned property or other property right, such as a 
right to flood.
Property right--Any legal right acquired or reserved by TVA that 
concerns property, such as a right to flood private property.
Reach--A segment of stream between two locations.
Tennessee River--The river reach from its mouth at the Ohio River to 
its beginning at mile 652, at the confluence of the Holston and 
French Broad Rivers.
Tributary--Any watercourse the contents of which, if not obstructed, 
diverted or consumed, will ultimately flow into the Tennessee River.
TVA reservoir--The impoundment created by a TVA dam constructed 
across the Tennessee River or one of its tributaries (including all 
streams reaches impounded by the dam). One dam may impound reaches 
of more than one stream. The impounded stream reaches together form 
the body of water (i.e., the reservoir) created by the construction 
of the dam. For example, the construction of Douglas Dam impounded a 
portion of the French Broad River as well as many other stream 
reaches, including, but not limited to, portions of Pigeon River, 
Nolichucky River, Flat Creek, Muddy Creek, and Seahorn Creek. All of 
the stream reaches impounded by Douglas Dam comprise Douglas 
Reservoir.
TVA reservoir system--The series of interconnected dams and 
reservoirs, with associated facilities, on the Tennessee River and 
its tributaries, that, with the adjacent TVA property, are managed 
by TVA for purposes of navigation, flood control, and power 
production; and consistent with those purposes, for a wide range of 
other public benefits.
Upstream tributary reach--Stream reaches located upstream of the 
control or influence of the operation of the TVA reservoir system.

    Dated: August 17, 2016.
Rebecca C. Tolene,
Deputy General Counsel and Vice President, Natural Resources.

                         Table 1--TVA Reservoirs
------------------------------------------------------------------------
 
------------------------------------------------------------------------
                       Tennessee River Reservoirs
------------------------------------------------------------------------
Kentucky...............................
Pickwick...............................
Wilson.................................
Wheeler................................
Guntersville...........................
Nickajack..............................
Chickamauga............................
Watts Bar..............................
Fort Loudoun...........................
------------------------------------------------------------------------
                          Tributary Reservoirs
------------------------------------------------------------------------
Apalachia.                               Bear Creek Projects (Alabama):
Beaver Creek (tributary to South Fork       Bear Creek.
 Holston River).                         Cedar Creek.
Blue Ridge.                                 Little Bear Creek.
Boone.                                      Upper Bear Creek.
Chatuge.                                 Beech River Projects (West
                                          Tennessee):
Cherokee.                                   Beech.
Clear Creek (tributary to Beaver Creek,     Cedar.
 tributary to South Fork Holston         Dogwood.
 River).
Doakes Creek (Norris Reservoir).            Lost Creek.

[[Page 59848]]

 
Douglas.                                    Pine.
Fontana.                                    Pin Oak.
Fort Patrick Henry.                         Redbud.
Hiwassee.                                   Sycamore.
John Sevier Detention Dam (just
 upstream of Cherokee Reservoir).
Melton Hill............................
Nolichucky.............................
Normandy...............................
Norris.................................
Nottely................................
Ocoee No. 1............................
Ocoee No. 2............................
Ocoee No. 3............................
South Holston..........................
Tellico................................
Tims Ford..............................
Watauga................................
Wilbur.................................
------------------------------------------------------------------------


             Table 2--Stream Reaches Downstream of TVA dams
------------------------------------------------------------------------
        River or stream            Reach (mile)         Description
------------------------------------------------------------------------
Tennessee River...............  0 to 652.........  Mouth to confluence
                                                    of the Holston and
                                                    French Broad Rivers.
Beaver Creek (tributary to      0 to 22.5........  Mouth to Beaver Creek
 South Fork Holston River).                         Dam.
Clear Creek (tributary to       0 to 2.8.........  Mouth to Clear Creek
 Beaver Creek tributary to                          Dam.
 South Fork Holston River).
Clinch River..................  0 to 79.8........  Mouth to Norris Dam.
Duck River....................  0 to 248.6.......  Mouth to Normandy
                                                    Dam.
Elk River (tributary to         0 to 133.3.......  Mouth to Tims Ford
 Tennessee River).                                  Dam.
French Broad River............  0 to 32.3........  Mouth to Douglas Dam.
Hiwassee River................  0 to 121.0.......  Mouth to Chatuge Dam.
Holston River.................  0 to 142.2.......  Mouth to confluence
                                                    of the North and
                                                    South Fork Holston
                                                    Rivers.
Little Tennessee River \1\....  0 to 61.0........  Mouth to Fontana Dam.
Nolichucky River..............  0 to 45.6........  Mouth to Nolichucky
                                                    Dam.
Nottely River.................  0 to 21.0........  Mouth to Nottely Dam.
Ocoee River...................  0 to 37.8........  Mouth to the Georgia/
                                                    Tennessee State
                                                    Line.
South Fork Holston River......  0 to 49.8........  Mouth to South
                                                    Holston Dam.
Toccoa River..................  0 to 53.0........  The Georgia/Tennessee
                                                    State Line to Blue
                                                    Ridge Dam.
Watauga River.................  0 to 36.7........  Mouth to Watauga Dam.
Bear Creek Projects (Alabama):  .................  .....................
    Bear Creek................  0 to 114.7.......  Mouth to Upper Bear
                                                    Creek Dam.
    Cedar Creek...............  0 to 23.1........  Mouth to Cedar Creek
                                                    Dam.
    Little Bear Creek.........  0 to 11.6........  Mouth to Little Bear
                                                    Creek Dam.
Beech River Projects (West      .................  .....................
 Tennessee):
    Beech River...............  0 to 35.0........  Mouth to Beech Dam.
    Big Creek.................  0 to 6.7.........  Mouth to Dogwood Dam.
    Browns Creek..............  0 to 5.1.........  Mouth to Pin Oak Dam.
    Dry Branch................  0 to 1.1.........  Mouth to Sycamore
                                                    Dam.
    Dry Creek.................  0 to 1.0.........  Mouth to Redbud Dam.
    Haley Creek...............  0 to 4.0.........  Mouth to Cedar Dam.
    Lost Creek................  0 to 1.3.........  Mouth to Lost Creek
                                                    Dam.
    Piney Creek...............  0 to 4.8.........  Mouth to Pine Dam.
------------------------------------------------------------------------
\1\ Brookfield Smoky Mountain Hydro manages Little Tennessee River Miles
  33.6 to 59.1.


[[Page 59849]]

[FR Doc. 2016-20093 Filed 8-30-16; 8:45 am]
 BILLING CODE 8120-08-P