[Federal Register Volume 83, Number 170 (Friday, August 31, 2018)]
[Rules and Regulations]
[Pages 44467-44474]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18887]


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TENNESSEE VALLEY AUTHORITY

18 CFR Part 1304

RIN 3316-AA23


Floating Cabin Regulation

AGENCY: Tennessee Valley Authority.

ACTION: Final rule.

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SUMMARY: The Tennessee Valley Authority (TVA) is publishing a final 
rule to amend its regulations that govern floating cabins located on 
the Tennessee River and its tributaries. The mooring of floating cabins 
on the TVA reservoir system has increased, and TVA has determined that 
this poses an unacceptable risk to navigation, safety, and the 
environment. Left unaddressed, floating cabins convert the public 
waters under TVA's management to private use. The amendments re-define 
nonnavigable houseboats and floating cabins using one term--``floating 
cabins''--and prohibit new floating cabins on TVA-managed reservoirs 
after December 16, 2016. The amendments also include limited mooring 
standards, limitations on expansions of floating cabins, and 
requirements for owners to register their floating cabins. Additional 
health, safety, and environmental standards for floating cabins will be 
addressed in a later rulemaking once TVA has had the opportunity to 
discuss such standards with various stakeholders.
    In addition, and separate from the updated rule amendments for 
floating cabins, these amendments contain minor changes to clarify when 
TVA will allow some water-use facilities (e.g., docks) to be as large 
as 1800 square feet.

DATES: This final rule is effective October 1, 2018.

FOR FURTHER INFORMATION CONTACT: David B. Harrell, 865-632-1327; Email: 
[email protected] or [email protected], Mail address: Tennessee Valley 
Authority, 400 West Summit Hill Drive, WT 11A-K, Knoxville, TN 37902.

SUPPLEMENTARY INFORMATION:

Legal Authority

    This final rule is promulgated under the authority of the TVA Act, 
as amended, 16 U.S.C. 831-831ee, Title V of the Independent Offices 
Appropriations Act of 1955, 31 U.S.C. 9701, and OMB Circular No. A-25. 
Under Section 26a of the TVA Act, no obstructions affecting navigation, 
flood control, or public lands or reservations shall be constructed, 
operated, or maintained across, along, or in the Tennessee River System 
without TVA's approval. TVA has long considered nonnavigable structures 
such as floating cabins to be obstructions that require its approval. 
In addition, Section 9b of the TVA Act provides that TVA ``may 
establish regulations to prevent the construction of new floating 
cabins.'' 16 U.S.C. 831h-3(e).

Background and Proposed Amendments

    TVA is a multi-purpose federal agency that has been charged by 
Congress with promoting the wise use and conservation of the resources 
of the Tennessee Valley region, including the Tennessee River System. 
In carrying out this mission, TVA operates a system of dams and 
reservoirs on the Tennessee River and its tributaries for the purpose 
of navigation, flood control, and power production. Consistent with 
those purposes, TVA uses the system to improve water quality and water 
supply and to provide a wide range of public benefits including 
recreation.
    To promote the unified development and regulation of the Tennessee 
River System, Congress directed TVA to approve obstructions across, 
along, or in the river system under Section 26a of the TVA Act, as 
amended. ``Obstruction'' is a broad term that includes, by way of 
example, boat docks, piers, boathouses, buoys, floats, boat launching 
ramps, fills, water intakes, devices for discharging effluents, 
bridges, aerial cables, culverts, pipelines, fish attractors, shoreline 
stabilization projects, channel excavations, and nonnavigable 
houseboats. TVA also owns, as agent for the United States, much of the 
shoreline and inundated land along and under its reservoir system.
    Since 1971, TVA has used its authority under Section 26a to 
prohibit the mooring on the Tennessee River System of new nonnavigable 
houseboats that are used primarily for habitation or occupation and not 
for navigation or water transportation. In particular, TVA amended its 
regulations in 1971 to prohibit the mooring or anchoring of new 
nonnavigable houseboats except for those in existence before November 
21, 1971. Criteria were established then to identify when a houseboat 
was considered ``navigable'' and the conditions under which existing 
nonnavigable houseboats would be allowed to remain. These criteria were 
characteristics that TVA determined were indicative of real watercraft; 
i.e., boats or vessels that are designed and used primarily to traverse 
water. Since 1971, TVA has made minor changes to its regulations 
affecting nonnavigable houseboats, most notably in 1978 when TVA 
updated the prohibited mooring of

[[Page 44468]]

nonnavigable houseboats on its reservoir system except for those in 
existence on or before February 15, 1978. The navigability criteria, 
however, largely have remained unchanged.
    A ``nonnavigable houseboat'' under TVA's current regulations is 
identified as any houseboat not in compliance with the following 
criteria:
    Built on a boat hull or on two or more pontoons;
    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;
    Compliant with all applicable state and federal requirements 
relating to vessels;
    Registered as a vessel in the state of principal use; and
    State registration numbers clearly displayed on the vessel.
    Despite the nonnavigable houseboat prohibition, new nonnavigable 
houseboats in the form of floating cabins have been moored on TVA 
reservoirs. TVA estimates that approximately 2,000 floating cabins and 
older nonnavigable houseboats are now moored on TVA reservoirs. Some 
developers and owners of these floating cabins have asserted that they 
are not nonnavigable houseboats because they have been designed to meet 
the criteria for navigability in TVA's regulations. Whether or not this 
is true, these floating cabins are designed and used primarily for 
human habitation at a fixed location rather than for transportation or 
navigation. These floating cabins are a modern version of the pre-1978 
nonnavigable houseboats that TVA addressed in its 1971 and 1978 
regulatory actions. They are not in any real sense watercraft, and 
absent action by TVA, the mooring of floating cabins on TVA reservoirs 
will continue to increase. Until now, TVA has discouraged the increased 
mooring of floating cabins without using the full scope of its 
regulatory authority under the TVA Act.
    In determining what action to take, TVA prepared an Environmental 
Impact Statement (EIS) in accordance with the National Environmental 
Policy Act. This EIS assesses the environmental and socioeconomic 
impacts of different policies to address the proliferation of floating 
cabins and nonnavigable houseboats on TVA's reservoirs. TVA released a 
draft of this EIS for public comment in June 2015 and held four public 
meetings and a webinar to provide information about its analyses and to 
facilitate public involvement. Public reaction to this situation widely 
varied.
    Many members of the general public urged TVA to require the removal 
of all floating cabins because TVA's reservoirs are public resources 
and owners of floating cabins are occupying public areas. Floating 
cabin owners generally supported additional reasonable regulation of 
their structures but argued against policies requiring their removal 
because of the investments they have made in the structures. Other 
commenters had concerns about discharges of black (sewage) and gray 
(showers, sinks, etc.) water from floating cabins and shock and 
electrocution risks associated with the electrical connections to 
floating cabins. Commenting agencies consistently supported better 
regulation of floating cabins. The final EIS and associated documents 
can be found at https://www.tva.com/Environment/Shoreline-Construction/Floating-Cabins.
    After considering the comments it received during the EIS process 
and its analyses of impacts, TVA identified as its preferred policy one 
that establishes standards for floating cabins to enhance compliance 
with applicable water quality discharge requirements set by other 
agencies, adherence to electrical safety codes, and location of 
floating cabins within identified harbor limits of commercial marinas. 
Under the preferred policy, the mooring of additional floating cabins 
would be prohibited on the Tennessee River System of which TVA 
reservoirs are a part. All existing floating cabins, including 
nonnavigable houseboats, would have to be removed from the Tennessee 
River System by January 1, 2036, and be subject to a regulatory program 
in the interim. On May 5, 2016, the TVA Board of Directors adopted the 
preferred policy with one exception--the Board changed the removal date 
to May 5, 2046.
    On December 16, 2016, the Water Infrastructure Improvements for the 
Nation Act (WIIN Act) was enacted by the United States Congress. Title 
IV Section 5003 related to floating cabins and amended the TVA Act to 
include Section 9b. This new section of the TVA Act specifically 
addresses floating cabins and provides that TVA may allow the use of 
floating cabins where the structure was located on waters under TVA's 
jurisdiction as of December 16, 2016; and where the owner maintains the 
structure in accordance with reasonable health, safety, and 
environmental standards set by the TVA Board of Directors. Section 9b 
also states that TVA may establish regulations to prevent the 
construction of new floating cabins and may levy fees to ensure 
compliance.
    Section 9b provides the circumstances under which TVA may require 
the removal of existing floating cabins; i.e., those located on waters 
under TVA's jurisdiction as of December 16, 2016. For existing floating 
cabins that have a TVA permit as of December 16, 2016, TVA may not 
require their removal for 15 years; i.e., until December 16, 2031. For 
existing floating cabins without permits on December 16, 2016, TVA may 
not require their removal for five years; i.e., until December 16, 
2021. During these 15- and 5-year periods, however, TVA may levy 
necessary and reasonable fees to ensure compliance with TVA's 
regulations. The new legislation also provides that, with respect to 
existing floating cabins, TVA ``shall approve and allow the use of the 
floating cabin on waters under the jurisdiction of [TVA] at such time 
and for such duration as (i) the floating cabin meets the requirements 
of [16 U.S.C. 831h-3(b)]; and (ii) the owner of the floating cabin has 
paid any fee assessed pursuant to [16 U.S.C. 831h-3(c)].'' 16 U.S.C. 
831h-3(d)(1)(B).
    Section 9b of the TVA Act defines ``floating cabin'' as a 
watercraft or other floating structure (1) primarily designed and used 
for human habitation or occupation; and (2) not primarily designed or 
used for navigation or transportation on the water. This final rule 
clarifies the type of structure that TVA will regulate as a floating 
cabin and updates TVA's regulations to clarify that floating cabins 
placed on TVA waters after December 16, 2016, are prohibited. The final 
rule also establishes limited mooring requirements; clarifies 
limitations on expansions; and requires all owners of floating cabins 
to register their structures with TVA by January 1, 2020, regardless of 
whether they already have a Section 26a permit. Although this deadline 
allows plenty of time for owners to register their floating cabins, TVA 
encourages owners to begin the registration process without delay. A 
subsequent rulemaking will address: (1) The permitting process for 
existing floating cabins; (2) health, safety, and environmental 
standards; and (3) fees.

Floating Cabins

    To more clearly describe the type of floating structure that TVA 
regulates, the term ``nonnavigable houseboat'' will be replaced in 
TVA's Section 26a regulations with the term ``floating cabin,'' the 
term adopted by Congress in the WIIN Act. Floating cabins are 
structures determined by TVA, in its sole judgment, to be designed and 
used primarily for human habitation or occupation and not designed or 
used

[[Page 44469]]

primarily for navigation or transportation on the water. TVA's judgment 
will be guided by, but not limited to, the following factors:
    1. Whether the structure is usually kept at a fixed mooring point;
    2. Whether the structure is actually used on a regular basis for 
transportation or navigation;
    3. Whether the structure has a permanent or continuous connection 
to the shore for electrical, plumbing, water, or other utility service;
    4. Whether the structure has the performance characteristics of a 
vessel typically used for navigation or transportation on the water;
    5. Whether the structure can be readily removed from the water;
    6. Whether the structure is used for intermittent or extended 
human-habitation or occupancy;
    7. Whether the structure clearly has a means of propulsion and 
appropriate power/size ratio;
    8. Whether the structure is safe to navigate or use for 
transportation purposes.

Mooring

    Existing floating cabins, i.e., those located on the Tennessee 
River System on or before December 16, 2016, may continue to be moored 
in the following locations: Within harbor limits of a commercial 
marina; if the floating cabin is not associated with a marina, along 
shoreline approved in writing by TVA on or before December 16, 2016; 
where moored prior to December 16, 2016, along shoreline where land 
rights exist for a Section 26a permit; or, where moored prior to 
December 16, 2016, along shoreline where the owner of the floating 
cabin is the owner or lessee of the proposed mooring location. To 
prevent sprawl and to better contain the impacts of floating cabins, 
TVA will not allow an existing floating cabin to relocate except to the 
harbor limits of a commercial marina that complies with 18 CFR 
1304.404, the TVA regulation governing commercial marina harbor limits. 
In some cases, existing floating cabins moored at a commercial marina 
are located outside of the designated harbor limits or the marina's 
land ownership has changed since the harbor limits were originally 
designated. In these and other situations, TVA may require a floating 
cabin to relocate to another location within the marina's harbor 
limits. Relocations to alternate marinas would require advance approval 
from TVA in the form of a new permit.

Dock Size

    Separate from the amendments to regulations concerning floating 
cabins, the final rule would result in a minor change to clarify TVA's 
intent concerning the size of some water-use facilities (e.g., docks). 
The current regulation requires water-use facilities to be sited within 
a 1000-square-foot rectangular or square area. The proposed change 
would allow some water-use facilities to be as large as 1800 square 
feet, but only in one of two circumstances (1) where the water-use 
facility will be located in a subdivision recorded before November 1, 
1999, and TVA permitted at least one water-use facility in the 
subdivision prior to November 1, 1999; or (2) if there is no 
subdivision, where the water-use facility will be located within a 
quarter-mile radius of another water-use facility that TVA permitted 
prior to November 1, 1999. TVA's current waiver or variance provisions, 
set forth in Sec. Sec.  1304.212 and 1304.408 respectively, may allow 
even larger facilities where an applicant requests and justifies a 
waiver or variance, but such allowances shall be made in TVA's 
discretion and on a case-by-case basis.

Comments on the Proposed Rule and TVA's Responses

    TVA received 32 comments during the public review period consisting 
of three letters and 29 emails. This includes one comment that TVA 
received after the comment-close date, which TVA will include. Comments 
were received from 28 individuals and four representatives of 
nongovernmental organizations. The following discussion describes the 
comments received, provides TVA's response to the comments, and 
describes changes, if any, made by TVA to the rule based on the 
comments. Although several of the submitted comments do not pertain to 
the proposed rule published on January 17, 2018, TVA appreciates the 
perspectives, interests, and concerns expressed by all commenters.
    Some of the comments were outside the scope of this rule and were 
more germane to the next phase of rulemaking where TVA will address: 
(1) The permitting process for existing floating cabins; (2) health, 
safety, and environmental standards; and (3) fees. Since August 2017, 
TVA has worked with a representative stakeholder group to develop more 
detailed rules and standards to guide future regulation of floating 
cabins. TVA expects to publish this second proposed rule and take 
public comments at a later date in 2018.

1. Comments Related to Other 26a-Permitted Structures and the Need for 
26a Regulations

    Comment: Some commenters stated that TVA's regulations, standards, 
inspections, and fees should not discriminate against floating cabin 
owners and should apply consistently to all structures on TVA 
reservoirs such as private residential docks. Commenters asserted it is 
unfair and unreasonable to treat floating cabins differently from other 
26a permitted structures. Some commenters stated that TVA is focusing 
on something that has never been a problem and docks are far more 
dangerous to navigation.
    TVA Response: Section 26a of the TVA Act requires the advance 
written approval of TVA for all floating cabins, private residential 
docks, and other obstructions. Since 1971 TVA has recognized the 
necessity to prohibit construction of new nonnavigable houseboats (the 
early version of floating cabins) and establish regulations exclusively 
for their authorization and management on TVA reservoirs. This was due 
to their unique nature as a habitable enclosed structure, amenities, 
and their impacts on navigation, public land, and water quality. The 
2016 WIIN Act allows existing floating cabins to remain on the water 
only if the owner maintains the structure in accordance with reasonable 
health, safety, and environmental standards set by the TVA Board of 
Directors.
    TVA has previously established corresponding standards for private 
residential water use facilities. Subparts C and D of the TVA Section 
26a regulations set forth the standards for private water use 
facilities such as boat docks in substantial detail and restrict these 
facilities in ways that floating cabins are not restricted. For 
example, living space or sleeping areas are prohibited; enclosed space 
is limited to 32 square feet for storage; and toilets, sinks, and 
electrical appliances are not allowed. Electrical lines and service to 
private docks must be installed in compliance with all State and local 
electrical codes (satisfactory evidence of compliance to be provided to 
TVA upon request); and electrical service must be installed with an 
electrical disconnect that is located above the 500-year floodplain or 
flood risk profile whichever is higher, and is accessible during flood 
events.
    Floating cabins raise unique safety concerns because many have 
electrical service supplied by submerged electrical lines, and many are 
equipped with household appliances.

[[Page 44470]]

    Concerning the impact of floating cabins, in its Environmental 
Impact Statement, TVA used an extensive amount of existing information 
and additional data collection and analysis to support its finding of 
potential impacts to human health and the environment from floating 
cabins. The finding of potential impacts are based on existing 
information, literature on the known effects on resources, comments by 
agencies and the public about impacts that they experience, internal 
TVA resource specialists, and professional judgment. The potential 
adverse impacts from sewage discharges into public waterways and the 
risk and potential harm to the public safety from poorly maintained 
electrical wiring are well established and understood. TVA acknowledged 
that the severity of current impacts is not well-sourced in available 
information. For example, TVA states that adverse water quality impacts 
cannot currently be associated with floating cabins, but available 
information, including the literature, supports TVA's conclusion that 
the severity of impacts will increase if the proliferation of floating 
cabins is not controlled and operating standards are not established. 
It is appropriate that TVA acts to address such potential impacts 
before they become severe.

2. Comments Related to Vessels

    Comment: I fail to see the distinction between my in-harbor water 
access for which I pay a monthly marina fee and TVA gets money from the 
marinas and the distinction between houseboats who move twice a year, 
and certainly between docks that literally jut out into the water in 
public (non-harbor-limits) that are not subject to annual fees as is 
proposed.
    TVA Response: TVA is authorized by the WIIN Act to charge 
compliance fees for floating cabins. Additionally, permit requests for 
private water use facilities such as docks are usually considered only 
where the applicant owns the shoreline, or as an adjacent landowner 
possesses the necessary deeded land rights over TVA land to the 
reservoir.
    TVA does not promulgate rules for vessels, only for obstructions. 
Vessels such as factory houseboats and wake board boats are regulated 
by the States and the U.S. Coast Guard. The States mandate and charge 
for vessel registration. EPA and the Coast Guard issue rules for the 
proper handling of sewage and waste from vessels. The Coast Guard 
regulates the building and manufacturing of recreational boats 
including houseboats under 33 CFR part 183. This includes regulation of 
electrical and fuel systems, ventilation, loading capacity, and 
flotation requirements.
    Habitable structures such as floating cabins are subject to the 
same local, state, and federal laws and ordinances for management of 
sewage and waste water that apply to residences on land.
    Comment: Why do factory houseboats get to dump their grey water in 
the lake and no one goes after them or wake board boats get to intake 
water and then release out as grey water. Consider these differences in 
your evaluation as it seems to be so one-sided.
    TVA Response: The regulation of black water and gray water 
discharges is outside the scope of this rulemaking, but TVA notes that 
such discharges are regulated by the Coast Guard for vessels and by 
state agencies that are responsible for issuing National Pollutant 
Discharge Elimination System (NPDES) permits for facilities that 
discharge sewage or other wastewaters.

3. TVA's Interest in Safety Associated With Other Structures

    Comment: TVA has no interest in safety issues on shoreline docks 
and factory houseboats and there are far more of these in bad condition 
that should be subject to inspections.
    TVA Response: TVA disagrees. Current TVA Section 26a regulations 
and all permits require the owner to complete the approved facility in 
accordance with approved plans, and maintain it in a good state of 
repair and in good, safe, and substantial condition. If a facility is 
found to be in violation of the permit or in abandoned or derelict 
condition, the permit can be revoked and the owner required to remove 
the facility. TVA performs periodic compliance inspections along the 
shoreline to review existing facilities and detect violations. Also, 
see response to Comment Group 1.
    The States are responsible for enforcing boating laws, and the 
Coast Guard regulates the building and manufacturing of recreational 
boats including houseboats under 33 CFR part 183. This involves areas 
such as electrical and fuel systems, ventilation, loading capacity, and 
flotation requirements.

4. Comments Related to a Sunset Provision

    Comment: I request that you not overreach on Section 9b of the act 
thus creating a sunset, even though the sunset provision was overturned 
in the Water Rights Act.
    TVA Response: TVA will comply with Section 9b of the TVA Act as 
directed by the 2016 WIIN Act. There is no sunset provision in any 
existing or proposed regulations for floating cabins.
    Comment: I believe that our sizable investment should remain for 
us, our kids and our grandkids. Our ``floating cabin'' is within the 
harbor boundaries of a very nice marina, out of the main traffic flow, 
has holding tanks for both black and gray water and a signed contract 
for weekly pump outs. In addition, insurance is mandatory, as are slip 
fees for both our ``floating cabin'' as well as our pontoon boat. With 
concern for my kids and grandkids who are just learning to boat, ski, 
swim and fish; we all insist on a clean and safe environment. In 
addition, these recreational activities provide countless jobs for the 
restaurants, marinas, shops and service providers in the area.
    TVA Response: TVA will comply with Section 9b of the TVA Act as 
directed by the 2016 WIIN Act. There is no sunset provision in any 
existing or proposed regulations for floating cabins.

5. Comments That Pertain to the Next Phase of Rulemaking

    Comment: Numerous commenters identified issues and made 
recommendations that do not pertain to the proposed amendments but will 
pertain to the next rulemaking phase. These included comments about the 
need for the following requirements: For sewage to be pumped or 
incinerated on board; for floating cabin owners to document the pump-
out of sewage; for owners to maintain their floating cabins in a good 
state of repair; for TVA to offer a buy-back program to reduce the 
number of floating cabins; for TVA later to offer a limited number of 
permits back to the public; for floating cabins to be safe, clean, and 
well-maintained; for fees and regulations that incorporate the public's 
input and that take into account the impact on owners of floating 
cabins on Boone Reservoir; for a prohibition on the use of unencased 
Styrofoam; for mooring lines to have reflective markers or buoys at 
locations that show boaters the angle of the cables under the water; 
and for buoys, lights, and signs to warn of navigation and 
electrocution risks.
    TVA Response: TVA acknowledges and appreciates these comments and 
anticipates the stated issues and recommendations will be addressed in 
the next rulemaking phase.

6. Comments Related to the Private Use of Public Waters and Water 
Quality

    Comment: A number of commenters stated that they believed that 
floating cabins are an inappropriate private use of public resources. 
Floating cabins were referred to as ``squatting'' on public waters by 
one commenter who

[[Page 44471]]

also urged a no expansion policy and complete compliance of these 
structures with all environmental and safety regulations. One commenter 
stated that any plan that allows floating cabins to remain is 
unacceptable. Another commenter stated that allowing people to live in 
floating cabins is unfair to the original landowners who had to leave 
their property when the dams were built. One commenter stated that 
TVA's mission requires the agency to preserve the environment by 
removing floating cabins from the river.
    TVA Response: TVA will comply with the direction provided by the 
U.S. Congress in the WIIN Act of 2016, which established Section 9b of 
the TVA Act. That legislation underscored TVA's authority to regulate 
floating cabins, and expressly stated that TVA could prohibit floating 
cabins that were not located on waters under TVA's jurisdiction as of 
December 16, 2016. Thus, this final rule clarifies that new structures 
are prohibited, which will prevent the proliferation of new structures 
and allow TVA to remove such new structures.
    With respect to existing floating cabins that were located on 
waters under TVA jurisdiction prior to or on December 16, 2016, the 
WIIN Act prohibits removal for a period of 5 or 15 years from December 
16, 2016, depending on whether the existing floating cabin received a 
TVA permit prior to December 16, 2016. After that, existing floating 
cabins may remain if: Maintained in compliance with reasonable 
standards as required by the TVA Board; fees are paid that are 
necessary and reasonable for ensuring compliance; a Section 26a permit 
is obtained by the deadline provided in the next phase of rulemaking; 
and the floating cabin remains in compliance with the terms and 
conditions of the permit.
    Comment: TVA has attempted unsuccessfully to reduce the mooring of 
floating cabins on the waters that it governs without using the full 
extent of its legal powers. This suggests that it is time for a more 
forceful solution. Furthermore, a 30-year grace period for removal of 
all existing houseboats is more than fair, given that the statute only 
requires 15 years to require removal. 16 U.S.C.A. 831h-3(d)(1)(A). 
While negative economic impacts on regulated parties are never 
desirable, preserving the nation's water quality is of paramount 
importance. Prioritizing the needs of floating cabin owners over those 
people who make their living off the pristine environment of the 
Tennessee River Basin is unfair, and short sighted. In order to fulfill 
the purpose of Tennessee Valley Authority to preserve the environment 
of this area while promoting unified economic development, these 
floating cabins must be removed from the river.
    TVA Response: TVA recognizes the public's concern with this issue. 
In its Environmental Impact Statement, TVA's Preferred Policy would 
have required the removal of existing floating cabins after 30 years; 
however, Congress's passage of the WIIN Act prevents TVA from mandating 
removal after 30 years. The WIIN Act does underscore TVA's authority to 
prohibit new structures, however, which this final rule amendment 
clarifies. Only structures located on waters under TVA's jurisdiction 
by December 16, 2016 may remain, and those structures must comply with 
TVA's standards and fees. Structures installed after that date are 
prohibited, and TVA has the authority to remove them. Thus, the WIIN 
Act and this final rule help stop the proliferation of floating cabins.

7. Comments Related to TVA's Environmental Impact Statement and the 30-
Year Sunset Policy That the TVA Board Adopted Prior to Passage of the 
WIIN Act of 2016

    Comment: A few commenters objected to TVA's preferred alternative 
in TVA's Environmental Impact Statement to remove floating cabins by 
2036, and the TVA Board's May 2016 Policy in which TVA determined that 
existing floating cabins should be removed by 2046. One commenter 
stated that TVA should change the removal date to 2036.
    TVA Response: These comments pertain to the management alternatives 
considered in the Floating Houses Policy Review EIS (February 2016). 
Although the TVA Board approved a policy on May 5, 2016, incorporating 
Alternative B2 from TVA's EIS with a 30-year ``sunset'' provision, that 
policy has been modified by subsequent legislation. In particular, the 
WIIN Act of 2016 amended the TVA Act to prevent the removal of floating 
cabins where (1) the floating cabins remain in compliance with TVA 
standards and fees and (2) the floating cabins existed on waters under 
TVA's jurisdiction on or prior to December 16, 2016. Thus, there is no 
longer a sunset provision mandating removal of floating cabins in the 
future. As a result, Alternative B1 from TVA's EIS is being implemented 
for the future management of floating cabins.

8. Comments in Support of the Final Rule

    Comment: Numerous commenters expressed general support for the 
final rule amendments. Many commented that TVA's documentation, 
inventory, registration and inspection of floating cabins is an 
appropriate way to ensure owners are accountable for properly 
maintaining their structures. Others emphasized that TVA should 
regularly and fairly enforce the regulations. One commented that the 
rule should apply to houseboats as well.
    TVA Response: TVA acknowledges these comments and agrees with the 
need to have reasonable standards and rules, have consistent 
enforcement of regulations, and avoid any burdensome requirements. Fees 
will be set only to the extent needed to offset TVA's costs for 
ensuring compliance as contained in Section 9b of the TVA Act and as 
directed by the WIIN Act of 2016.
    TVA does not regulate vessels or enforce boating laws. The States 
and the U.S. Coast Guard have this responsibility and authority. The 
Coast Guard regulates the building and manufacturing of recreational 
boats including houseboats under 33 CFR part 183. This involves areas 
such as electrical and fuel systems, ventilation, loading capacity, and 
flotation requirements.

Administrative Requirements

A. Unfunded Mandates Reform Act and Various Executive Orders Including 
E.O. 12866, Regulatory Planning and Review; E.O. 12898, Federal Actions 
To Address Environmental Justice in Minority Populations and Low-Income 
Populations; E.O. 13045, Protection of Children From Environmental 
Health Risks; E.O. 13132, Federalism; E.O. 13175, Consultation and 
Coordination With Indian Tribal Governments; E.O. 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, and Use; E.O. 12988, Civil Justice Reform Act; and the 
Presidential Executive Order on Reducing Regulation and Controlling 
Regulatory Costs Dated January 30, 2017

    This final rule contains no federal mandates for state, local, or 
tribal government or for the private sector. TVA has determined it will 
not have a significant annual effect of $100 million or more or result 
in expenditures of $100 million in any one year by state, local, or 
tribal governments or by 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

[[Page 44472]]

distribution of power and responsibilities between the federal 
Government and States or Indian tribes. Nor will the rule have concerns 
for environmental health or safety risks that may disproportionately 
affect children, have significant effect on the supply, distribution, 
or use of energy, or disproportionally impact low-income or minority 
populations. Unified development and regulation of the Tennessee River 
System through an approval process for obstructions across, along, or 
in 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. In general, the final rule updates or clarifies 
TVA's regulations to align them with the status quo. First, the final 
rule clarifies that no new structures are allowed and codifies (1) an 
updated definition for floating, habitable structures that are 
allowable on TVA reservoirs; (2) where such structures may be located; 
and (3) the types of modifications that are allowed. The final rule 
also amends TVA's regulations to align better with its policy for 
allowing some obstructions, usually docks, to be larger than 1000 
square feet. Accordingly, the rule has no implications for any of the 
referenced authorities, including the Presidential Executive Order on 
Reducing Regulation and Controlling Regulatory Costs dated January 30, 
2017, which affects only ``significant regulatory actions'' as defined 
by Executive Order 12866.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 605, TVA is required 
to prepare a regulatory flexibility analysis unless the head of the 
agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities. 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 TVA's final rule. Moreover, nothing in this 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; no regulatory 
flexibility analysis is required; and TVA's Chief Executive Officer has 
made the requisite certification.

C. Paperwork Reduction Act

    Title of Information Collection: Section 26a Permit Application.
    Current OMB Approval Number: 3316-0060.
    This rule contains information collection requirements for 
registration of floating cabins which have been submitted to the Office 
of Management and Budget (OMB) for approval. The information collection 
requirements under this rule will be included by amendment within the 
Section 26a Permit Application information collection. TVA provided 
burden information and requested comments on these requirements in the 
preamble to the proposed rule. No comments directed toward the 
information collection requirements were received.
    The only information collection activity contained in the rule is a 
requirement that owners of floating cabins register them with TVA. The 
registration includes: Photographs of the structure, drawings showing 
the size and shape of the floating cabin and attached structures, such 
as decks or slips, in reasonable detail; and a completed and signed TVA 
registration form. The registration form includes the owner's mailing 
and contact information; the TVA permit or TVA-issued numbers; the 
mooring location; how the floating cabin is moored; how electrical 
service is provided; how waste water and sewage is managed; and an 
owner's signature.
    The information is necessary and will be used pursuant to TVA Land 
Management activities and Section 26a of the Tennessee Valley Authority 
Act of 1933, as amended, which require TVA to collect information 
relevant to projects that will impact TVA land and land rights and 
review and approve plans for the construction, operation, and 
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.
    Respondents will be the owners of floating cabins. The estimated 
time to complete a registration is 2 hours. TVA estimates that, in the 
first year of the floating cabin registration process, the number of 
responses will increase from 1,500 to 3,700. Accordingly, the estimated 
burden will increase from 3,000 hours to 7,400 hours in the first year, 
and then return to about 3,000 hours in following years.
    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.

    For the reasons set out in the preamble, the Tennessee Valley 
Authority amends 18 CFR part 1304 of the Code of Federal Regulations as 
follows:

PART 1304--APPROVAL OF CONSTRUCTION IN THE TENNESSEE RIVER SYSTEM 
AND REGULATION OF STRUCTURES AND OTHER ALTERATIONS

0
1. The authority citation for part 1304 continues to read as follows:

    Authority:  16 U.S.C 831-831ee.


0
2. Amend Sec.  1304.1 by revising the third sentence to read as 
follows:


Sec.  1304.1   Scope and intent.

    * * * 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 excavations, and floating cabins as described in 
Sec.  1304.101. * * *

Subpart B--Regulation of Floating Cabins

0
3. Revise the subpart B heading to read as set forth above.

0
4. Revise Sec.  1304.100 to read as follows:


Sec.  1304.100   Scope and intent.

    This subpart prescribes requirements for floating cabins on the 
Tennessee River System. Floating cabins as applied to this subpart 
include existing nonnavigable houseboats approved by TVA and other 
existing structures, whose design and use is primarily for human 
habitation or occupation and not for navigation or transportation on 
the water. Floating cabins that were not located or moored on the 
Tennessee River System on or before December 16, 2016, shall be deemed 
new floating cabins. New floating cabins are prohibited and subject to 
the removal provisions of this part and Section 9b of the TVA Act. No 
new floating cabins shall be moored, anchored, or installed on the 
Tennessee River System. Floating

[[Page 44473]]

cabins that were located or moored in the Tennessee River System on or 
before December 16, 2016 shall be deemed existing floating cabins. 
Existing floating cabins may remain moored on the Tennessee River 
System provided they remain in compliance with the rules in this part.

0
5. Amend Sec.  1304.101:
0
a. By revising the section heading and paragraphs (a) and (b);
0
b. In paragraphs (c) introductory text and (c)(1) and (2) by removing 
the words ``nonnavigable houseboat'', ``Nonnavigable houseboats'' and 
``nonnavigable houseboats'' and adding in their place the words 
``floating cabin'', ``Floating cabins'' and ``floating cabins'', 
respectively, wherever they appear;
0
c. By revising paragraph (d);
0
d. In paragraph (e) by removing the words ``nonnavigable houseboats'' 
and adding in their place the words ``floating cabins'';
0
e. In paragraph (f) by removing the words ``nonnavigable houseboat'' 
and adding in their place the words ``floating cabin''; and
0
f. By adding paragraph (g).
    The revisions and additions read as follows:


Sec.  1304.101   Floating cabins.

    (a)(1) Floating cabins include nonnavigable houseboats approved by 
TVA on or before December 16, 2016, and other floating structures 
moored on the Tennessee River System as of this date, and determined by 
TVA in its sole discretion to be designed and used primarily for human 
habitation or occupation and not designed and used primarily for 
navigation or transportation on the water. TVA's judgment will be 
guided by, but not limited to, the following factors:
    (i) Whether the structure is usually kept at a fixed mooring point;
    (ii) Whether the structure is actually used on a regular basis for 
transportation or navigation;
    (iii) Whether the structure has a permanent or continuous 
connection to the shore for electrical, plumbing, water, or other 
utility service;
    (iv) Whether the structure has the performance characteristics of a 
vessel typically used for navigation or transportation on water;
    (v) Whether the structure can be readily removed from the water;
    (vi) Whether the structure is used for intermittent or extended 
human-habitation or occupancy;
    (vii) Whether the structure clearly has a means of propulsion, and 
appropriate power/size ratio;
    (viii) Whether the structure is safe to navigate or use for 
transportation purposes.
    (2) That a structure could occasionally move from place to place, 
or that it qualifies under another federal or state regulatory program 
as a vessel or boat, are factors that TVA also will consider but would 
not be determinative. Floating cabins are not recreational vessels to 
which Sec.  1304.409 applies.
    (b)(1) Owners of floating cabins are required to register the 
floating cabin with TVA before January 1, 2020. Floating cabin owners 
must submit certain required information with their registration. 
Registration shall include the following information: Clear and current 
photographs of the structure; a drawing or drawings showing in 
reasonable detail the size and shape of the floating cabin (length, 
width, and height) and attached structures, such as decks or slips 
(length, width, and height); and a completed and signed TVA 
registration form. The completed TVA registration form shall include 
the mailing and contact information of the owner(s); the TVA permit or 
TVA-issued numbers (when applicable); the mooring location of the 
floating cabin; how the floating cabin is moored; how electrical 
service is provided; how waste water and sewage is managed; and an 
owner's signature.
    (2) Existing floating cabins may remain on TVA reservoirs provided 
they stay in compliance with the rules contained in this part and pay 
any necessary and reasonable fees levied by TVA to ensure compliance 
with TVA's regulations. Existing floating cabins must be moored at one 
of the following locations:
    (i) To the bank of the reservoir at locations where the owner of 
the floating cabin is the owner or lessee (or the licensee of such 
owner or lessee) of the proposed mooring location provided the floating 
cabin was moored at such location prior to December 16, 2016;
    (ii) At locations described by Sec.  1304.201(a)(1), (2), and (3) 
provided the floating cabin was moored at such location prior to 
December 16, 2016;
    (iii) To the bank of the reservoir at locations where the owner of 
the floating cabin obtained written approval from TVA pursuant to 
subpart A of this part authorizing mooring at such location on or 
before December 16, 2016; or
    (iv) Within the designated and approved harbor limits of a 
commercial marina that complies with Sec.  1304.404. As provided in 
Sec.  1304.404, TVA may adjust harbor limits and require relocation of 
an existing floating cabin within the harbor limits. Accordingly, in 
the case of relocations that occur after December 16, 2016, an existing 
floating cabin can relocate only to the harbor limits of a commercial 
marina that complies with Sec.  1304.404.
    (3) All floating cabins must be moored in such a manner as to:
    (i) Avoid obstruction of or interference with navigation, flood 
control, public lands or reservations;
    (ii) Avoid adverse effects on public lands or reservations;
    (iii) Prevent the preemption of public waters when moored in 
permanent locations outside of the approved harbor limits of commercial 
marinas;
    (iv) Protect land and landrights owned by the United States 
alongside and subjacent to TVA reservoirs from trespass and other 
unlawful and unreasonable uses; and
    (v) Maintain, protect, and enhance the quality of the human 
environment.
* * * * *
    (d) Existing floating cabins shall be maintained in a good state of 
repair and may be maintained without additional approval from TVA. 
Existing floating cabins may be rebuilt to the same configuration, 
total footprint, and dimensions (length, width, and height) as 
permitted without additional TVA approval. Owners are required to 
notify TVA thirty days in advance and submit their proposed plans for 
rebuilding the floating cabin. Within thirty days of completion, owners 
must submit a photo of the rebuilt floating cabin for TVA's records. 
Any expansion in length, width, or height is prohibited, except as 
approved in writing by TVA and necessary to comply with health, safety, 
and environmental requirements.
* * * * *
    (g) All floating cabins not in compliance with this part are 
subject to the applicable removal provisions of Sec.  1304.406 and 
Section 9b of the TVA Act.

0
6. Amend Sec.  1304.102 by:
0
a. Revising the section heading;
0
b. In paragraphs (a) and (b), removing the words ``nonnavigable 
houseboat'' and ``nonnavigable houseboats'' and adding in their place 
the words ``floating cabin'' and ``floating cabins'', respectively, 
wherever they appear;
0
c. Adding a sentence to the end of paragraph (a)' and
0
d. Revising paragraph (c).
    The addition and revisions read as follows:


Sec.  1304.102   Numbering of floating cabins and transfer of 
ownership.

    (a) * * * If TVA provided a placard or tag, the tag must be 
displayed on a

[[Page 44474]]

readily visible part of the outside of the floating cabin.
* * * * *
    (c) A floating cabin 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 the same 
commercial dock or marina.


Sec.  1304.103   [Removed and Reserved]

0
7. Remove and reserve Sec.  1304.103.

0
8. Amend Sec.  1304.204 by revising paragraphs (a), (b), and (n) to 
read as follows:


Sec.  1304.204   Docks, piers, and boathouses.

* * * * *
    (a) Docks, piers, boathouses, and all other residential water-use 
facilities shall not exceed a total footprint area of greater than 
1,000 square feet, unless the proposed water-use facility will be 
located in an area of preexisting development. For the purpose of this 
regulation, ``preexisting development'' means either: The water-use 
facility will be located in a subdivision recorded before November 1, 
1999, and TVA permitted at least one water-use facility in the 
subdivision prior to November 1, 1999; or if there is no subdivision, 
where the water-use facility will be located within a quarter-mile 
radius of another water-use facility that TVA permitted prior to 
November 1, 1999. TVA may allow even larger facilities where an 
applicant requests and justifies a waiver or variance, set forth in 
Sec. Sec.  1304.212 and 1304.408 respectively, but such waivers or 
variances shall be made in TVA's discretion and on a case-by-case 
basis.
    (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 1,000- or 1,800-square-foot rectangular or 
square area as required by Sec.  1304.204(a) 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 
1,000- or 1,800-square foot area.
* * * * *
    (n) Except for floating cabins approved in accordance with subpart 
B of this part, toilets and sinks are not permitted on water-use 
facilities.
* * * * *


Sec.  1304.406  [Amended]

0
9. Amend Sec.  1304.406 in the first sentence by removing the words 
``nonnavigable houseboat'' and adding in their place the words 
``floating cabin''.


0
10. Amend Sec.  1304.412 by:
0
a. Adding in alphabetical order definitions for ``Existing floating 
cabin'' and ``New floating cabin'';
0
b. Removing the definition of ``Nonnavigable houseboat''; and
0
c. Adding in alphabetical order definitions for ``Rebuilding'' and 
``Tennessee River System''.
    The additions read as follows:


Sec.  1304.412   Definitions.

* * * * *
    Existing floating cabin means a floating cabin that was located or 
moored on the Tennessee River System on or before December 16, 2016.
* * * * *
    New floating cabin means a floating cabin that was not located or 
moored on the Tennessee River System on or before December 16, 2016.
* * * * *
    Rebuilding means replacement of all or a significant portion of an 
approved obstruction to the same configuration, total footprint, and 
dimensions (length, width, and height) as the approved plans, 
standards, and conditions of the Section 26a permit.
* * * * *
    Tennessee River System means TVA reservoirs, the Tennessee River or 
any of the Tennessee River's tributaries.
* * * * *

David L. Bowling,
Vice President, Land & River Management.
[FR Doc. 2018-18887 Filed 8-30-18; 8:45 am]
BILLING CODE 8120-08-P