Floating Cabins, 67386-67394 [2019-25934]

Agencies

• Tennessee Valley Authority

[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.
0
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.
* * * * *
0
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
* * * * *
0
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