Floating Cabins
| Published date | 10 December 2019 |
| Citation | 84 FR 67386 |
| Record Number | 2019-25934 |
| Section | Proposed rules |
| Court | Tennessee Valley Authority |
Federal Register, Volume 84 Issue 237 (Tuesday, December 10, 2019)
[Federal Register Volume 84, Number 237 (Tuesday, December 10, 2019)]
[Proposed Rules]
[Pages 67386-67394]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-25934]
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TENNESSEE VALLEY AUTHORITY
18 CFR Part 1304
RIN 3316-AA23
Floating Cabins
AGENCY: Tennessee Valley Authority.
[[Page 67387]]
ACTION: Proposed Rule.
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SUMMARY: The Tennessee Valley Authority (TVA) is proposing to amend its
regulations that govern floating cabins located on the Tennessee River
System. The mooring of floating cabins on the Tennessee River System,
if left unaddressed, would pose unacceptable risks to navigation,
safety, the environment, and public lands.
DATES: Written comments must be received on or before March 9, 2020.
ADDRESSES: You may submit comments by any of the following methods:
Mail/Hand Delivery: David B. Harrell, Program Manager, Floating
Cabins Tennessee Valley Authority, 400 West Summit Hill Drive, WT 11A-
K, Knoxville, TN 37902.
Email: [email protected] or [email protected].
FOR FURTHER INFORMATION CONTACT: David B. Harrell, 865-632-1327,
[email protected].
SUPPLEMENTARY INFORMATION:
Legal Authority
These proposed amendments are 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 require floating cabins to be maintained by the owner to
reasonable health, safety, and environmental standards. Section 9b also
authorizes TVA to levy fees on floating cabin owners as necessary and
reasonable to ensure compliance.
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 purposes
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.
``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 floating cabins. TVA also owns, as
agent for the United States, much of the shoreland and inundated land
along and under its reservoir system.
The proposed amendments would establish health, safety, and
environmental standards for floating cabins, including standards for
electrical safety, flotation, mooring, and wastewater discharge. The
proposed amendments also address TVA's management and administration of
the floating cabins program. The proposed amendments would allow
floating cabin owners until January 1, 2021, to register with TVA. They
also establish permitting requirements for floating cabins and other
requirements for repairs, modifications, or alterations to floating
cabins and their attached structures.
In addition, TVA also proposes to make other changes to its Section
26a regulations. Certain requirements for flotation and discharges into
navigable waters that were prompted by floating cabins will apply to
all Section 26a applications and permits. The proposed amendments
include other minor changes to TVA's Section 26a regulations for
clarity and consistency.
Since 1971, TVA has used its Section 26a authority to prohibit the
mooring on the Tennessee River System of new floating cabins (formerly
nonnavigable houseboats) that are designed and used primarily for
habitation and not for 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
prohibited mooring of nonnavigable houseboats on the Tennessee River
System except for those in existence on or before February 15, 1978.
Effective October 1, 2018, TVA updated its regulations to change the
terminology to floating cabins and prohibit new floating cabins that
did not exist on the Tennessee River System on or before December 16,
2016.
Despite over 40 years of regulation related to floating cabins, the
number of floating cabins on the Tennessee River System continued to
increase. In determining what action to take with respect to floating
cabins, TVA prepared an Environmental Impact Statement (EIS) in
accordance with the National Environmental Policy Act. This EIS
assessed the environmental and socioeconomic impacts of different
policies to address the proliferation of floating cabins on the
Tennessee River System. 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. Owners of
floating cabins 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 grey
(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/floatingcabins.
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 to ensure safer mooring, electrical
connections, and protection of water quality. Under the preferred
policy, the mooring of new floating cabins would be prohibited on the
Tennessee River System. The preferred policy would have required all
existing floating cabins, including nonnavigable houseboats, to be
removed from the Tennessee River System by January 1, 2036, and be
subject to a regulatory
[[Page 67388]]
program in the interim. On May 5, 2016, the TVA Board of Directors
adopted the preferred policy, except the Board extended the removal
date to May 5, 2046.
On December 16, 2016, Congress enacted the Water Infrastructure
Improvements for the Nation Act of 2016 (WIIN Act). Title IV Section
5003 related to floating cabins and amended the TVA Act to include
Section 9b. This new section of the TVA Act provides that TVA may
approve and allow the use of floating cabins on waters under the
jurisdiction of TVA as of December 16, 2016, if the floating cabin is
maintained to reasonable health, safety, and environmental standards as
required by the TVA Board of Directors and if the owner pays a
compliance fee if assessed by TVA. The WIIN Act stipulates that TVA may
not require the removal of a floating cabin that was located on the
Tennessee River System as of December 16, 2016: (1) For a period of 15
years if it was granted a permit by TVA before enactment, and (2) for a
period of 5 years for a floating cabin that was not granted a permit by
TVA before enactment. It further stipulates that TVA may establish
regulations to prevent the construction of new floating cabins. These
regulations were planned in two phases.
Phase I Floating Cabins Amendments
TVA published ``Phase I'' rule amendments for floating cabins that
became effective on October 1, 2018. These amendments clarified the
types of structures that TVA will regulate as a floating cabin and
prohibited new floating cabins from mooring on the Tennessee River
System after December 16, 2016. TVA estimates that approximately 2,250
floating cabins were moored on the Tennessee River System on December
16, 2016. These initial rule amendments also incorporated a requirement
for owners to register their floating cabins and identified locations
where floating cabins may moor.
Proposed Amendments
The proposed ``Phase II'' rule amendments include health, safety,
environmental, and permitting standards that will apply to all floating
cabins. A diverse stakeholder group composed of 18 members advised TVA
on the development and drafting of these standards. The group
represented varied interests and perspectives. Members included
representatives from floating cabin owners, lake user interests,
fishing interests, marina owners, local power distributors, state and
federal regulatory agencies, the insurance industry, and the general
public. The full group met five times from August 2017 to June 2019 at
various locations, including locations near Norris and Fontana
Reservoirs where floating cabins are prevalent. Teleconferences were
also held among three subgroups to develop and discuss recommendations
in specific subject matter areas. An industry professional in marine
electricity presented to the group and helped answer questions
regarding electricity at marinas and in water. TVA tested and displayed
ground fault protection devices for the group to observe and discuss.
Each of the three subgroups made recommendations for a subset of
standards. Recommendations were presented to the full stakeholder group
for wastewater, electrical, flotation, mooring, fees, permitting
standards, and compliance. TVA reviewed and evaluated the
recommendations and responded to each recommendation. TVA refined the
recommendations and developed them into these proposed rule amendments
for publication for public review and comment. A draft of the rule
amendments was reviewed with the stakeholder group in June 2019.
Permitting Program
TVA's proposed standards and permitting requirements for floating
cabins will apply to all existing floating cabins, including those
formerly referred to as nonnavigable houseboats originally permitted on
or before February 15, 1978. All floating cabins and attached
structures will require a new permit.
To obtain a permit, owners of floating cabins will have until
January 1, 2024, to comply with the standards in TVA's regulations and
submit a complete permit application that certifies compliance and
includes the payment of a Section 26a permit application fee. TVA will
not require floating cabin owners to pay the permit application fee if
they possess a permit issued before December 16, 2016, in their name
and the structure is compliant with the terms of the permit,
constructed in accordance with the permit (same dimensions, attached
structures such as docks, and utility connections), and moored at the
permitted location. A change in ownership application fee, currently
$250, will be charged each time an existing floating cabin owner
requests a transfer of the permit to a new owner. Permits will only be
transferrable if the structure is fully in compliance with the existing
permit.
The proposed permit application submission date of January 1, 2024,
will give owners approximately four years from the publication of the
standards to bring structures into compliance. TVA encourages floating
cabin owners to bring floating cabins into compliance and then apply
for a permit without delay. Upon submission of the application, owners
of floating cabins may remain in place until TVA acts on the
application. If TVA approves the application, TVA will issue a Section
26a permit to the owner. If TVA denies the application, the owner must
either correct all deficiencies or remove the structure in accordance
with Section 9b of the TVA Act and 18 CFR 1304.406.
Removal
Under the proposed amendments, TVA would require owners to remove
their floating cabins if TVA determines a floating cabin is not in
compliance with its permit, does not apply for a permit by January 1,
2024, or does not pay the compliance fee if levied by TVA. The
requirement to remove a floating cabin would be in accordance with
Section 9b of the TVA Act and 18 CFR 1304.406. All structures not
removed by the applicable deadline may be removed by TVA at the owner's
expense.
Flotation
Unencased flotation (i.e. Styrofoam) breaks apart over time, can
harm wildlife, and becomes litter in reservoirs or along shorelines.
Currently, all docks, floating cabins, and other water-use structures
and facilities permitted by TVA are subject to 18 CFR 1304.400, which
establishes flotation requirements to protect the environment from
harmful flotation materials such as Styrofoam and the contents of metal
drums, which were common flotation devices in the past. TVA's current
regulations prohibit unencased flotation unless it was previously
allowed by TVA, was installed prior to September 8, 2003, and is still
serviceable in TVA's judgment. Although TVA interprets this provision
to prohibit the installation of unencased flotation to repair or
replace existing flotation, the proposed amendments would make this
prohibition explicit and would require the removal and replacement of
all unencased flotation no later than December 31, 2031. If TVA
determines that the existing unencased flotation is no longer
serviceable prior to December 31, 2031, owners would have 24 months
from notification from TVA to remove and replace it. These changes
would apply to all Section 26a permits, including floating cabins.
[[Page 67389]]
Mooring
Some floating cabins are moored by running cables across the water
to attach to a tree or other anchor on the shoreline. This potentially
obstructs navigation and recreation, poses a potential hazard to public
safety, and can detract from the scenic integrity of the areas where
floating cabins are located. Current regulations require floating
cabins to be moored in such a manner as to: (1) Avoid obstruction of or
interference with navigation, flood control, public lands, or
reservations; (2) avoid adverse effects on public lands or
reservations; (3) prevent the preemption of public waters when moored
in permanent locations outside of the approved harbor limits of
commercial marinas; (4) protect land and land rights owned by the U.S.
alongside and subjacent to TVA reservoirs from trespass and other
unlawful and unreasonable uses; and (5) maintain, protect, and enhance
the quality of the human environment.
These regulations will continue to apply to floating cabins. Two
additional requirements will be added. Floating cabin owners must
ensure visibility of all mooring cables, and comply with 18 CFR
1304.205(c) which prohibits attachment to trees on TVA property. The
method of mooring should be modified, if necessary, to eliminate
navigation and safety hazards. If modification of the mooring method is
not practical or feasible, TVA's permit will require the hazard to be
marked to aid in visibility and to help avoid property damage and
personal injury. Permit applicants must indicate how the structure is
moored, and TVA will determine if that method is allowable. Any
determinations on proper mooring and hazard marking will be made during
the permit review process. TVA may require owners to install markers on
aerial wires or buoys on underwater cables at specific distances to
help increase visibility and warn the public. TVA's current regulations
specify four locations where floating cabins must be located. These
include areas where the floating cabin was moored as of December 16,
2016, and the owner has sufficient land ownership or landrights as
specified in the regulations; locations where the owner had written
permission from TVA prior to December 16, 2016; or within the harbor
limits of a commercial marina. To prevent sprawl and to better contain
the impacts of floating cabins, TVA would prohibit relocation of
permitted floating cabins to a different reservoir. TVA would consider
applications to relocate existing floating cabins to any commercial
marina on their respective reservoir that is willing to accept them.
Any relocation except within the harbor limits of the same marina would
require advance approval from TVA in the form of a reissued permit and
concurrence from the receiving marina operator.
Electrical
Floating cabins can also pose a threat to public safety due to
unsafe electrical systems. TVA is aware that floating cabins are
currently obtaining electricity from the shore via underwater cables,
through onboard portable generators, and by other methods. TVA is not
aware of any local, state, or federal entity that currently monitors
the construction of floating cabins and enforces building codes.
However, after the WIIN Act, these agencies may consider floating
cabins to be more like housing rather than boats, and agencies may
determine to regulate and inspect those within their jurisdiction. If
an agency chooses to regulate, floating cabins would be required to
comply with all applicable federal, state, and local laws and
regulations regarding electrical wiring and equipment. If a floating
cabin is documented to be in violation of any federal, state, or local
electrical standard or regulation by the respective regulatory agency,
TVA will revoke the permit and require removal of the floating cabin
from the Tennessee River System if the violation is not corrected as
specified by the regulatory agency in accordance with the agency's
requirements.
In addition and at a minimum, TVA would require all floating cabin
owners to install ground fault protection and to use properly listed
underwater cables. At two-year intervals, TVA will require floating
cabin owners to provide certification that the floating cabin meets
these requirements.
Wastewater
Floating cabins use various methods to manage their black and grey
water. Some have holding tanks for black water (sewage) and use pump-
out facilities to dispose of wastewater through land-based systems. TVA
has received complaints of some floating cabins discharging black and/
or grey water directly to the reservoir. Grey water originates from
sinks, showers, dishwashers, and washing machines and is often
discharged directly to the reservoir. Black and grey water discharges
can contribute to water quality deterioration. Discharges are regulated
by state environmental agencies.
TVA would require floating cabin owners to comply with discharge
requirements set by local, state, or federal agencies and would rely on
those agencies to identify when such requirements are violated. This
properly recognizes those agencies' expertise and regulatory roles. If
TVA is notified by a federal, state, or local agency that an owner of a
floating cabin is not compliant with applicable discharge requirements
and has failed to correct that deficiency, TVA would revoke the
floating cabin's permit and require the structure to be removed from
the Tennessee River System. The potential loss of the Section 26a
permit for floating cabins if discharge violations occur should help
induce more compliant behavior and complement state agency efforts.
TVA will require a Section 26a permit for all floating cabins, and
all TVA permits must comply with the Clean Water Act (CWA). Section 401
of the CWA prohibits federal agencies from issuing a permit to conduct
an activity, including the construction or operation of facilities,
which may result in any discharge into navigable waters of the United
States unless the applicable state agency has certified that the
proposed activity will be conducted in a manner that will not violate
applicable water quality standards or the certification has been
waived. Each certifying agency responsible for implementing the CWA
will determine if certifications are required for existing, rebuilt,
altered, or combined floating cabins. Some may determine to review and
make one determination that applies to all floating cabins within its
jurisdiction or some may review each request for floating cabin permits
individually. The respective certifying agencies will make this
determination.
When Section 401 of the CWA is triggered, TVA will not grant a
Section 26a permit for a floating cabin or other obstruction unless a
water quality certification has been provided or waived by the
respective certifying agency. The proposed rule allows up to one year
for the certifying agency to take action. If a certifying agency has
not acted within that period of time, TVA will deem the certification
requirement to be waived and may then proceed with processing the
Section 26a application. This would apply to all Section 26a permit
applications.
Maintenance, Alterations, and Rebuilds
Floating cabins that fall into disrepair can threaten public
safety, create a boating hazard, and create litter in reservoirs and
along shorelines. Therefore, normal repair and maintenance of floating
cabins is encouraged and may be undertaken
[[Page 67390]]
without TVA's permission. By way of example, maintenance activities
include painting, changing the internal walls of the enclosed space,
replacing shingles or siding, electrical wiring, plumbing, or adding
new encased flotation that complies with the regulations. Maintenance
activities do not include any activity that would increase the size or
dimensions of the floating cabin, including its enclosed or open
spaces. Owners should not increase the size (length, width, or height)
of the floating cabin or the enclosed or open spaces without TVA's
permission and prior written approval.
Any alteration to the approved plans for a floating cabin would be
deemed a structural modification and, if approvable, would require a
new permit from TVA. With three exceptions, alterations will be
prohibited. First, an alteration may be allowed if it is approved in
writing in advance by TVA and is necessary to comply with health,
safety, and environmental standards. Second, TVA may approve enclosure
of open space on the monolithic frame of an existing floating cabin if
the enclosure will not result in expansion to the dimensions (length,
width, and height) of the monolithic frame. At least 24 contiguous
square feet of open space with a minimum width of four feet must be
retained on the monolithic frame for boarding. Finally, TVA may allow
changes in the roof pitch but no part of the floating cabin may exceed
a total height of 14 feet above the lowest floor level of the floating
cabin.
Floating cabins may be rebuilt to the exact same dimensions
(length, width, and height), including both enclosed and open spaces,
as previously approved by TVA. Owners will be required to notify TVA in
writing and submit plans 60 days in advance of proposed rebuilding and
must receive prior written approval from TVA before beginning
construction. TVA may require a new permit for the proposed rebuilding
if it includes any changes to the previously approved plans. Owners
must submit to TVA four photographs of the rebuilt floating cabin, one
from each side, within 30 days of completion.
Combined Floating Cabins
To potentially reduce the number and footprint of floating cabins
on the Tennessee River System, TVA is proposing a program that allows
removal of two or more existing floating cabins in exchange for one
replacement floating cabin. With a permit obtained in advance, TVA may
allow owners to remove and replace multiple existing floating cabins
with a combined floating cabin that meets certain size requirements.
Owners must provide evidence that all existing floating cabins to be
removed existed on the Tennessee River System as of December 16, 2016,
and must remove the existing floating cabins before construction on the
combined floating cabin may begin. The permits for the removed floating
cabins will be rendered invalid upon their removal. All combined
floating cabins must locate within the harbor limits of a commercial
marina and have the marina owner's permission. The combined floating
cabin must be located on the same reservoir as any of the existing
floating cabins to be exchanged. The maximum size allowable for the new
structure would be the lesser of 1000 square feet or the combined size
of the monolithic frames of the removed floating cabins. Any amount of
the combined size exceeding 1000 square feet would be forfeited and
could not be transferred to another party or another project. At least
24 contiguous square feet with a minimum width of four feet must remain
open to allow for boarding of the combined floating cabin. The maximum
roof height is 14 feet above the lowest floor level. Attached
structures such as decks may not be incorporated into the monolithic
frame of the combined floating cabin. Requests for combined floating
cabins will be deemed major construction and subject to the applicable
Section 26a permit application fee.
Attached Structures
Floating cabins will be limited to 250 square feet of attached
structures such as decks or swim platforms. Attached structures must
remain open and uncovered. All attached structures must be permitted to
the floating cabin owner. Attached structures that were a part of the
floating cabin as of December 16, 2016, may remain with written
approval from TVA. However, any application for certain structural
modifications or a combined floating cabin will require the attached
structures be reduced to 250 square feet.
Other Changes to Section 26a Regulations
In addition to the changes affecting floating cabins and those for
flotation and discharges applicable to all Section 26a permits, TVA is
proposing other minor amendments to the Section 26a regulations. These
include changes to the TVA locations where applications are addressed,
clarification regarding the size of residential water-use facilities in
pre-existing developments, and other minor edits for clarity and
consistency in the regulations.
III. 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 E.O.
13771, Reducing Regulation and Controlling Regulatory Costs
This proposal 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 proposal will not have
a substantial direct effect on the States or Indian tribes, on the
relationship between the Federal Government and the States or Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and States or Indian tribes. Nor will the
proposal 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, as amended. In general,
this proposal updates TVA's regulations relating to the standards that
floating cabins will be required to meet in order to remain on the
Tennessee River System. This proposal would establish a charge for
individuals or entities that request certain services from TVA relating
to use of its property, reservoirs, and permitting for a floating
cabin. Absent a request for these services for a Section 26a permit, no
entity or individual would be forced to pay a charge. None of the
charges would be applied retroactively. The proposal also amends TVA's
regulations to clarify a date certain by which all unencased flotation
must be removed from TVA's reservoirs. The proposal also amends TVA's
regulations to establish a time
[[Page 67391]]
period after which TVA will deem a state's water quality certification
decision to be waived and proceed with processing of Section 26a permit
applications. TVA will continue to appropriately review specific
requests in accordance with applicable laws, regulations, and Executive
Orders. Accordingly, the proposal 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 proposal will not have a significant economic
impact on a substantial number of small entities. TVA's Chief Executive
Officer has certified that this proposal 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 floating cabins are owned
by individuals and not businesses, not-for-profit enterprises, or small
governmental jurisdictions, and therefore relatively few ``small
entities'' will be affected by TVA's proposal. Even if the proposed
amendments tangentially impact marinas that accommodate floating
cabins, a relatively small number of marinas will be impacted.
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.
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 proposes to amend 18 CFR part 1304 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 18 CFR Part 1304 continues to read as
follows:
Authority: 16 U.S.C 831-831ee.
0
2. Amend Sec. 1304.2 by:
0
a. Adding a sentence after the second sentence of paragraph (a);
0
b. Revising paragraph (b);
0
c. Revising the first sentence of paragraph (c)(1) introductory text;
0
d. Revising paragraph (c)(1)(i);
0
e. Revising the second sentence of paragraph (c)(2) introductory text;
0
f. Revising the first sentence of paragraph (c)(2)(i);
0
g. Revising paragraph (c)(2)(ii)(A); and
0
h. Adding three sentences after the first sentence of paragraph (d).
The additions and revisions read as follows:
Sec. 1304.2 Application.
(a) * * * If the facility is an existing floating cabin, it must
meet the requirements of subpart B. * * *
(b) Applications shall be addressed to the Tennessee Valley
Authority, at the appropriate Regional Watershed Office location as
listed on the application and on TVA's website. To contact an office,
call 1-800-882-5263 or email [email protected]. Applications are available
on TVA's website.
(c) * * *
(1) * * * By way of example only, minor facilities may include:
boat docks, piers, rafts, boathouses, fences, steps, gazebos, and
floating cabins. * * *
(i) Completed application form. One copy of the application shall
be prepared and submitted. Application forms are available on TVA's
website. The application shall include a project description which
indicates what is to be built, removed, or modified, and the sequence
of the work. Applications for floating cabins shall include written
evidence that the floating cabin was located or moored on the Tennessee
River System as of December 16, 2016. An application to relocate a
floating cabin to a marina shall include evidence of approval from the
marina operator.
* * * * *
(2) * * * By way of example only, major projects and facilities may
include: Marinas, community docks, barge terminals, utility crossings,
bridges, culverts, roads, wastewater discharges, water intakes,
dredging, placement of fill, and combined floating cabins. * * *
(i) * * * Application forms are available on TVA's website. * * *
(ii) * * *
(A) Be prepared electronically or on paper suitable for
reproduction (no larger than 11 by 17 inches).
(d) * * * No section 26a permit will be granted until required
certification has been obtained or has been waived. If a certifying
agency has not acted within one (1) year of an applicant's request for
certification from the respective agency, TVA will deem the
certification requirement to be waived and proceed with processing of
the section 26a permit application. * * *
0
3. Amend Sec. 1304.10 by adding paragraph (c) to read as follows:
Sec. 1304.10 Change in ownership of approved facilities or
activities.
* * * * *
(c) Change in ownership of a floating cabin is addressed in Sec.
1304.102.
0
4. Amend Sec. 1304.100 by revising the last sentence and adding two
sentences thereafter to read as follows:
Sec. 1304.100 Scope and intent.
* * * Existing floating cabins may remain moored on the Tennessee
River System provided they remain in compliance with the rules in this
part and obtain a permit from TVA issued after [DATE OF FINAL RULE].
All permits for nonnavigable houseboats or floating cabins that were
not located on the Tennessee River System as of December 16, 2016, are
terminated. Unless otherwise noted, the term floating cabin refers to
the primary structure on the monolithic frame as well as all attached
structures.
0
5. Amend Sec. 1304.101 by:
0
a. Revising paragraphs (b), (c), (d), (e), and (g); and
0
b. Adding paragraphs (h), (i), (j), and (k);
The additions and revisions read as follows:
Sec. 1304.101 Floating cabins.
* * * * *
(b) Owners of floating cabins are required to register the floating
cabin with TVA before January 1, 2021. 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
[[Page 67392]]
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.
(c) All floating cabins shall comply with the standards in Sec.
1304.103 and make application for a section 26a permit by January 1,
2024.
(d) Existing floating cabins may remain on the Tennessee River
System 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, in accordance with section 9b
of the TVA Act.
(e) Existing floating cabins must be moored at one of the following
locations:
(1) 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;
(2) 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;
(3) 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
(4) 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.
* * * * *
(g) A floating cabin moored at a location approved pursuant to this
subpart shall not be relocated and moored at a different location
without a permit from TVA, except for movement to a new location within
the designated harbor limits of the same commercial marina. Existing
floating cabins may only relocate to the harbor limits of a commercial
marina that complies with Sec. 1304.404 on the same reservoir where
the floating cabin was moored as of December 16, 2016. Relocation of a
floating cabin to another TVA reservoir is prohibited.
(h)(1) Existing floating cabins shall be maintained in a good state
of repair and may be maintained without additional approval from TVA.
By way of example, these activities may include painting, changing the
internal walls within the existing enclosed space, replacing the
shingles, siding, electrical wiring, or plumbing, or adding new
flotation in compliance with Sec. 1304.400. Repair and maintenance
activities shall not modify any external walls or the dimensions
(length, width, and height) of the floating cabin or the enclosed or
open space.
(2) Any alterations to the dimensions or approved plans for an
existing floating cabin shall be deemed a structural modification and
shall require prior written approval from TVA. All expansions in
length, width, or height are prohibited, except under the following
circumstances if approved in writing in advance by TVA:
(i) TVA may allow alterations necessary to comply with health,
safety, and environmental standards;
(ii) TVA may allow enclosure of existing open space on the
monolithic frame of the existing floating cabin if the enclosure will
not result in expansion to the dimensions (length, width, and height)
of the monolithic frame. At least 24 contiguous square feet of open
space with a minimum width of four feet shall be maintained on the
monolithic frame for boarding; or
(iii) TVA may allow changes in roof pitch but no part of the
floating cabin may exceed a total height of 14 feet above the lowest
floor level.
(3) Owners must notify TVA in writing and submit plans 60 days in
advance of proposed rebuilding of a floating cabin. The owner shall not
begin construction until prior written approval from TVA is received.
TVA may require a new permit for the proposed rebuilding. The rebuilt
floating cabin shall match the exact configuration and dimensions
(length, width, and height) of both the total floating cabin and the
enclosed and open space as approved by TVA. Owners shall submit to TVA
four photographs of the rebuilt floating cabin, one from each side,
within 30 days of completion.
(i) TVA may allow the exchange of multiple existing floating cabins
removed from the Tennessee River System for a single combined floating
cabin under the following conditions:
(1) Prior written approval from TVA shall be obtained before taking
any actions. This request shall be regarded as an application for a
major facility under Sec. 1304.2. Evidence shall be provided to TVA
that all existing floating cabins to be exchanged were located on the
Tennessee River System as of December 16, 2016.
(2) Plans for removal of the existing floating cabin(s) shall be
approved in writing by TVA before removal occurs, and the floating
cabin(s) shall be removed at the owner's expense before construction of
the new combined floating cabin may begin. Approvals of the existing
floating cabins to be exchanged will be terminated.
(3) The combined floating cabin shall be moored within the harbor
limits of a commercial marina that complies with Sec. 1304.404. The
owner shall provide evidence of approval from the marina operator to
locate within the marina. The combined floating cabin must be located
on the same reservoir as any of the existing floating cabins to be
exchanged.
(4) The maximum total size of the monolithic frame of the combined
floating cabin is 1,000 square feet or the sum of the square footage of
the monolithic frames of the existing exchanged floating cabins,
whichever is less. At least 24 contiguous square feet with a minimum
width of four feet must remain open to allow for boarding of the
combined floating cabin. Any square footage of the existing exchanged
floating cabins that exceeds the maximum allowable total size of a
combined floating cabin is not transferrable to other projects or
owners.
(5) The maximum roof height is 14 feet above the lowest floor
level.
(6) Attached structures such as decks or swim platforms may not be
covered or enclosed or incorporated into the monolithic frame of a
combined floating cabin.
(j) Floating cabins are limited to 250 square feet of open,
uncovered attached structures. All attached structures must be
permitted to the floating cabin owner. Attached structures that were a
part of the floating cabin as of December 16, 2016, may remain with
written approval from TVA, but any application for a structural
modification as described in Sec. 1304.101(h)(2) or a combined
floating cabin as described in Sec. 1304.101(i) will require the
attached structures be reduced to 250 square feet.
(k) Any floating cabin not in compliance with this part is subject
to the applicable removal provisions of Sec. 1304.406 and section 9b
of the TVA Act.
0
6. Revise Sec. 1304.102 to read as follows:
Sec. 1304.102 Numbering of floating cabins and change in ownership.
(a) All approved floating cabins and attached structures shall
display a number assigned by TVA. The owner of the floating cabin shall
paint or attach a facsimile of the number on a readily
[[Page 67393]]
visible part of the outside of the facilities in letters at least three
inches high. If TVA provided a placard or tag, it must be displayed on
a readily visible part of the outside of the floating cabin.
(b) When there is a change in ownership of the floating cabin, the
new owner shall notify TVA within 60 days. Upon application to TVA by
the new owner, the new owner may continue to use the existing floating
cabin or carry out permitted activities pending TVA's decision on
reissuance of the permit. TVA shall reissue the permit upon determining
the floating cabin is in good repair, is the same configuration and
dimensions (length, width, and height) of both the total structure and
the enclosed and open space as previously permitted, moored in the same
location or in the harbor limits of the same commercial marina, and
complies with the conditions of the previous approval and the
requirements of this subpart.
0
7. Add section Sec. 1304.103 to read as follows:
Sec. 1304.103 Health, safety, and environmental standards.
(a) Wastewater. Floating cabins shall comply with Sec. 1304.2(d)
with regard to discharges into navigable waters of the United States.
All discharges, sewage, and wastewater, and the pumping, collection,
storage, transport, and treatment of sewage and wastewater shall be
managed in accordance with all applicable federal, state, and local
laws and regulations. If a floating cabin is documented to be in
violation of any federal, state, or local discharge or water quality
regulation by the respective regulatory agency, TVA will revoke the
permit and require removal of the floating cabin from the Tennessee
River System if the violation is not corrected as specified by the
regulatory agency in accordance with the agency's requirements.
(b) Flotation. Floating cabins shall comply with the requirements
for flotation devices and material contained in Sec. 1304.400.
(c) Mooring. All floating cabins must be moored in such a manner as
to:
(1) Avoid obstruction of or interference with navigation, flood
control, public lands, or reservations;
(2) Avoid adverse effects on public lands or reservations;
(3) Prevent the preemption of public waters when moored in
permanent locations outside of the approved harbor limits of commercial
marinas;
(4) Protect land and landrights owned by the United States
alongside and subjacent to TVA reservoirs from trespass and other
unlawful and unreasonable uses;
(5) Maintain, protect, and enhance the quality of the human
environment;
(6) Ensure visibility of all mooring cables; and
(7) Comply with Sec. 1304.205(c).
(d) Electrical standards. Floating cabins shall comply with all
applicable federal, state, and local laws and regulations regarding
electrical wiring and equipment. If a floating cabin is documented to
be in violation of any federal, state, or local electrical standard or
regulation by the respective regulatory agency, TVA will revoke the
permit and require removal of the floating cabin from the Tennessee
River System if the violation is not corrected as specified by the
regulatory agency in accordance with the agency's requirements.
Floating cabin owners shall provide certification of compliance with
the electrical standards of this subpart to TVA by January 1, 2024, and
every two years thereafter. The certification must be signed by a
licensed electrical engineer, a state-certified electrical inspector,
or a person certified by the International Association of Electrical
Inspectors, the International Code Council, or an equivalent
organization.
(1) All floating cabins must meet the following minimum
requirements for ground fault protection:
(i) The feeder(s) from electrical service on the shore to the
floating cabin shall have ground fault protection not exceeding 100
milliamps.
(ii) If the floating cabin has a transformer, the transformer shall
have ground fault protection not exceeding 100 milliamps at the first
overcurrent protection device on the secondary side of the transformer.
The conductors from the transformer enclosure to the overcurrent
protection device shall not exceed 10 feet and shall be installed in a
raceway.
(iii) If the floating cabin is located in a marina and the feeder
supplying the floating cabin is part of the marina's electrical system,
the feeder shall have ground fault protection not exceeding 100
milliamps.
(iv) If another source of electrical power is utilized on a
floating cabin, such as but not limited to a generator, photovoltaic
cell, or wind turbine, the source of electrical power shall have ground
fault protection not exceeding 100 milliamps at the first overcurrent
protection device for each source. For permanently installed sources,
the conductors from the source to the first overcurrent protection
device shall not exceed 10 feet and shall be installed in a raceway.
(v) The floating cabin owner may determine the devices that are
utilized to achieve the ground fault protection requirement provided
such devices are labeled and listed from a third-party testing
laboratory for the purpose of the installation.
(2) A portable power cable shall be installed from the shore to the
floating cabin and shall, at a minimum, meet the requirements of
National Fire Protection Association 70 Article 555.13 (A)(2) and
(B)(4) of the 2017 National Electrical Code. For new portable power
cables installed after , the
cables shall meet the requirements of the most recent version of the
National Electric Code.
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8. Amend Sec. 1304.204 by revising paragraphs (a) and (i) 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 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. Water-use
facilities located in an area of preexisting development shall not
exceed a total footprint area of 1,800 square feet.
* * * * *
(i) Where the applicant owns or controls less than 50 feet of
property adjoining TVA shoreland, the overall width of the facilities
permitted along the shore shall be limited to ensure sufficient space
to accommodate other property owners.
* * * * *
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9. Amend Sec. 1304.212 by revising paragraph (a)(1) to read as
follows:
Sec. 1304.212 Waivers.
(a) * * *
(1) The property is within a preexisting development as defined in
Sec. 1304.204(a); and
* * * * *
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10. Amend Sec. 1304.302 by revising the first sentence to read as
follows:
Sec. 1304.302 Vegetation management on flowage easement shoreland.
Removal, modification, or establishment of vegetation on privately-
owned shoreland subject to a
[[Page 67394]]
TVA flowage easement generally does not require approval by TVA. * * *
0
11. Revise Sec. 1304.400(a) to read as follows.
Sec. 1304.400 Flotation devices and material, all floating
structures.
(a)(1) By December 31, 2031, all unencased (i.e. Styrofoam)
flotation shall have been removed and replaced with flotation
consistent with this subpart. Structures continuing to use unencased
flotation on or after December 31, 2031, will be subject to removal
under Sec. 1304.406. Use or re-use of unencased flotation for repairs,
replacement, or new construction is prohibited. Existing unencased
flotation (secured in place prior to September 8, 2003) may continue to
be used until December 31, 2031, so long as it remains attached and in
good condition in TVA's judgement. If in TVA's judgement, the flotation
is no longer serviceable, it shall be replaced with approved flotation
within 24 months upon notification from TVA.
(2) All flotation for docks, boat mooring buoys, floating cabins
and attached structures, and other water-use structures and facilities,
shall be of materials commercially manufactured for marine use.
Flotation materials shall be fabricated so as not to become water-
logged, crack, peel, fragment, or be subject to loss of beads.
Flotation materials shall be resistant to puncture, penetration, damage
by animals, and fire. Any flotation within 40 feet of a line carrying
fuel shall be 100 percent impervious to water and fuel. Use of plastic,
metal, or other previously used drums or containers for encasement or
flotation purposes is prohibited, except as provided in paragraph (c)
of this section for certain metal drums already in use. For any
flotation devices or material, repair or replacement is required when
it no longer performs its designated function or it exhibits any of the
conditions prohibited by this subpart.
* * * * *
0
12. Amend Sec. 1304.412 by:
0
a. Adding in alphabetical order definitions for ``Attached structure'',
``Combined floating cabin'', ``Floating cabin'', ``Monolithic frame'',
and ``Structural Modification''; and
0
b. Revising the definitions for ``Backlot'', ``Community outlot'', and
``Rebuilding''.
The additions and revisions read as follows:
Sec. 1304.412 Definitions.
* * * * *
Attached structure means a floating deck, walkway, platform, slip,
or other structure that supports the use of a floating cabin and can be
detached from the floating cabin. Attached structures are not
considered part of the monolithic frame of a floating cabin.
* * * * *
Backlot means a residential lot not located adjacent to the
shoreland but located in a subdivision associated with the shoreland.
* * * * *
Combined floating cabin means a single floating cabin that replaces
two or more existing floating cabins.
* * * * *
Community outlot means a subdivision lot located adjacent to the
shoreland and designated by deed, subdivision covenant, or recorded
plat as available for use by designated property owners within the
subdivision.
* * * * *
Floating cabin means a nonnavigable houseboat 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.
* * * * *
Monolithic frame means the supporting floor structure of a floating
cabin that is constructed as one rigid component. It specifically
excludes any attached structures such as decks and platforms,
regardless of when they were connected or how they are connected (e.g.,
pins, hinges, bolts, ropes, etc.).
* * * * *
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 of the obstruction or enclosed or
open space) as the approved plans, standards, and conditions of the
section 26a permit.
* * * * *
Structural modification means any alteration to the dimensions
(length, width, and height of the obstruction or enclosed or open
space) or approved plans of a structure; in the case of floating
cabins, the dimensions include the total dimensions of the floating
cabin or enclosed or open space.
* * * * *
David L. Bowling,
Vice President, River and Resources Stewardship.
[FR Doc. 2019-25934 Filed 12-9-19; 8:45 am]
BILLING CODE 8120-08-P
