03-20649. Navigable Waters and Jurisdiction; Lake Fontana, NC

AGENCY:

Coast Guard, DHS.

ACTION:

Notice of navigability determination.

SUMMARY:

The Coast Guard previously solicited comments regarding a proposed change to the agency navigability status of Lake Fontana, an impoundment of the Little Tennessee River, wholly located in western North Carolina. Based on the comments received, the Coast Guard has confirmed the original navigability determination of Lake Fontana had an adequate factual basis. For purposes of Coast Guard jurisdiction Lake Fontana will remain navigable.

FOR FURTHER INFORMATION CONTACT:

Lieutenant Commander Christine N. Cutter, Legal Advisor, Fifth Coast Guard District, at telephone number [phone].

SUPPLEMENTARY INFORMATION:

On February 19, 2003, we provided public notice and requested comments on the Coast Guard's intention to change the navigability status of Lake Fontana, NC, that has been in effect since 1954 (68 FR 8069). In response to that notice published in the Federal Register we received six comments on the proposed change.

Discussion of Comments

The Swain County Chamber of Commerce and the Swain County Economic Development Commission provided comments that supported the proposed change for economic development reasons. One comment from a private individual questioned the necessity of the proposed change to the navigability determination citing a proposed rulemaking from the Coast Guard that would define “waters subject to the jurisdiction of the United States” as waters located on lands for which the United States has acquired title or controls. The authority cited 40 U.S.C. 255 (recently re-codified at 40 U.S.C.S. 3111 and 3112) does not apply to the present situation. The North Carolina Wildlife Resources Commission, the Tennessee Valley Authority and the Department of the Army, Wilmington District, Corps of Engineers all submitted comments which opposed the change in navigability status based on evidence that the Little Tennessee River was used as a highway in substantial interstate commerce with historic logging operations. The Department of the Army, Wilmington District, Corps of Engineers considers the Little Tennessee River to be navigable from it mouth to Mile 114.7 in Franklin, North Carolina based on a 1985 navigability study and report which was provided to the Coast Guard for review. The report provides documentary evidence of substantial interstate commerce to include the waters of Lake Fontana.

Navigability Determination Remains Unchanged

Based on the comments and supporting documentation received the Coast Guard has concluded that reliable evidence supports the original navigability determination of the Little Tennessee River. Therefore, the Coast Guard will not change its navigability determination of Lake Fontana and it will remain navigable for purposes of Coast Guard jurisdiction.

The Coast Guard's administrative determination regarding a body of waters navigability status is solely for the purpose of administering and enforcing applicable laws and Coast Guard regulations.

Dated: July 31, 2003.

Sally Brice-O'Hara,

Rear Admiral, Coast Guard, Commander, Fifth Coast Guard District.