2024-19373. Floating Cabins

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Tennessee Valley Authority

1. 18 CFR Part 1304
2. RIN 3316-AA25

AGENCY:

Tennessee Valley Authority.

ACTION:

Proposed rule.

SUMMARY:

The Tennessee Valley Authority (TVA) is proposing to amend its regulations that govern floating cabins located on the Tennessee River System.

DATES:

Written comments must be received on or before September 30, 2024.

ADDRESSES:

You may send comments, identified by RIN 3316-AA25, 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:[e-mail].

FOR FURTHER INFORMATION CONTACT:

David B. Harrell, 865-632-1327, [e-mail].

SUPPLEMENTARY INFORMATION:

Legal Authority

These proposed amendments are promulgated under the authority of the TVA Act, as amended, 16 U.S.C. 831 et seq. 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 (16 U.S.C. 831h-3) provides that TVA may require floating cabins to be maintained by the owner to reasonable health, safety, and environmental standards.

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 ( print page 70146) inundated land along and under its reservoir system.

The proposed amendments would modify health, safety, and environmental standards for floating cabins, including standards for electrical safety. The proposed amendments also address TVA's management and administration of the floating cabins program, including clarification around the allowable size of the structures. The proposed amendments would extend the deadline to allow floating cabin owners until October 1, 2029, to comply with the rules and apply for a Section 26a permit. TVA also proposes to make other minor changes to its 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. Since 1971, TVA has made minor changes to its regulations affecting nonnavigable houseboats, including 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 (rather than nonnavigable houseboats) 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. The final EIS and associated documents can be found at https://www.tva.com/​floatingcabins.

After considering the comments received during the EIS process and the 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 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). Section 5003 related to floating cabins and amended the TVA Act to include Section 9b (16 U.S.C. 831h-3). 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, or (2) for a period of 5 years if it 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.

Floating Cabins Amendments to TVA's Section 26a Regulations

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 2,200 floating cabins were moored on the Tennessee River System on December 16, 2016.

TVA published “Phase II” rule amendments for floating cabins that became effective on October 12, 2021. These amendments included health, safety, environmental, and permitting standards that apply to all floating cabins and a deadline by which floating cabin owners were to apply to TVA for a Section 26a permit. A diverse stakeholder group composed of 18 members advised TVA on the development and drafting of these standards. Owners of floating cabins were given until October 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. The permit application submission date of October 1, 2024, gave owners approximately three years from the effective date of the new standards to bring structures into compliance.

Permitting Program

TVA's permitting requirements for floating cabins 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.

TVA has encouraged floating cabin owners to bring floating cabins into compliance and then apply for a permit without delay; however, various factors such as the COVID-19 pandemic, supply chain and labor resource shortages, and state wastewater certification decisions caused delays for floating cabin owners to achieve compliance. The proposed amendment extends the deadline for owners to comply with all standards and submit a Section 26a permit application that certifies compliance no later than October 1, 2029. TVA may deny an initial application for floating cabins if it is submitted past the deadline of October 1, 2029.

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 remove the structure in accordance with Section 9b of the TVA Act and 18 CFR 1304.406.

The proposal also clarifies language on rebuilding floating cabins. Any alterations to the dimensions or approved plans for an existing floating cabin (monolithic frame or attached structure) are deemed a structural modification and require written approval from TVA.

Electrical

Floating cabins can 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. When the final Phase II rule on floating cabins was published in 2021, TVA was not aware ( print page 70147) of any local, state, or federal entity that monitored the construction of floating cabins and enforced building codes. However, after working with multiple state agencies, it became clear that state and local entities have the ability and expertise to regulate and inspect electrical requirements for floating cabins within their jurisdiction. Separate standards in TVA's Section 26a regulations had potential to create confusion for floating cabin owners about applicable requirements.

TVA is not changing the requirement that floating cabin owners 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 may 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 relevant regulatory agency in accordance with the agency's requirements. TVA proposes to remove the separate electrical standards for floating cabins from the Section 26a regulations and remove the requirement that floating cabin owners submit a certification of compliance to TVA every even-numbered year. This appropriately recognizes that state and local agencies are best equipped to adopt and enforce electrical standards for floating cabins while reinforcing compliance with those standards is a condition of the Section 26a permit. The regulations also clarify that applicants must provide documentation, upon TVA's request, that demonstrates the floating cabin is in compliance with wastewater and electric standards. In the event that a floating cabin owner fails to provide satisfactory evidence of compliance upon request, TVA is authorized to revoke the Section 26a permit and require removal of the floating cabin from the reservoir.

Other Changes to Section 26a Regulations

In addition to the changes affecting floating cabins listed above, TVA is proposing other minor amendments to the Section 26a regulations. These include minor edits for clarity and consistency in the regulations, including a clarification to the regulations that TVA's issuance of a permit for any proposed facility or obstruction does not mean the proposed facility or obstruction has been deemed safe by TVA and that TVA may proceed with the review of an application absent the submission of some of the noted information.

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. 14094, Modernizing Regulatory Review

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 $200 million or more or result in expenditures of $200 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. 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. TVA will continue to appropriately review specific requests in accordance with applicable laws, regulations, and Executive Orders.

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

1. The authority citation for 18 CFR Part 1304 continues to read as follows:

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

2. Amend § 1304.2 by:

a. Revising the first sentence of paragraph (b);

b. Adding a sentence at the end of paragraph (c); and

c. Adding paragraph (e).

The revision and additions read as follows:

§ 1304.2

Application.

* * * * *

(b) Applications shall be submitted on TVA's online application system or addressed to the Tennessee Valley Authority, at the appropriate location as listed on the application and on TVA's website.* * *

(c) * * * TVA, in its sole discretion, may proceed with the review of an application in the absence of some materials listed in this section.

* * * * *

( print page 70148)

(e) TVA's issuance of a permit does not mean that TVA has determined a facility or obstruction is safe for any purpose or that TVA has any duty to make such a determination. In issuing a permit, TVA assumes no liability to the applicant or to any third party for any damages to property or personal injuries arising out of or in any way connected with applicant's construction, operation, or maintenance of the permitted facility.

3. Amend § 1304.100 by:

a. Revising the seventh sentence; and

b. Adding a sentence after the seventh sentence.

The revision and addition read as follows:

§ 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 section 26a permit from TVA issued after October 12, 2021. Existing floating cabins that do not apply for a permit by the deadline in this part or do not remain in compliance with the rules in this part are subject to the removal provisions of this part and section 9b of the TVA Act.* * *

4. Amend § 1304.101 by:

a. Revising paragraph (c);

b. Revising paragraph (h)(2) introductory text;

c. Revising paragraph (h)(3); and

d. Revising paragraph (i)(3).

The revisions read as follows:

§ 1304.101

Floating cabins

* * * * *

(c) All floating cabins shall comply with the rules contained in this part and make application for a section 26a permit by October 1, 2029. TVA may, at its sole discretion, deny an initial application for a floating cabin submitted after this date. Unpermitted structures are subject to the removal provisions of this part and Section 9b of the TVA Act.

* * * * *

(h) * * *

(2) Any alterations to the dimensions or approved plans for an existing floating cabin (monolithic frame or attached structure) 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. Structural modifications to attached structures are subject to § 1304.101(i).

* * * * *

(3) Owners must submit an application to TVA sixty (60) days in advance of proposed rebuilding of an entire or significant portion of a floating cabin (monolithic frame or attached structures). The owner shall not begin construction until prior written acknowledgment from TVA is received. Plans for removal of the existing floating cabin or portions to be rebuilt shall be acknowledged in writing by TVA before removal occurs, and the removal shall be at the owner's expense before construction of the rebuild may begin. The owner shall provide evidence of approval from the marina operator to rebuild within the approved harbor limits of a commercial marina. TVA may require a new permit for the proposed rebuilding. Construction of the rebuilt floating cabin must be completed within 18 months. The rebuilt monolithic frame of the floating cabin shall match the exact configuration and dimensions (length, width, and height) of both the total monolithic frame and the enclosed and open space as approved by TVA; attached structures are subject to § 1304.101(i). The footprint of the attached structures shall not be incorporated into the footprint of the monolithic frame of the floating cabin.

* * * * *

(i) * * *

(3) Attached structures shall not exceed 14 feet in height from the lowest floor level, shall not be enclosed, shall not be connected to the monolithic frame by a single roofline, and shall comply with § 1304.204(p).

* * * * *

5. Amend § 1304.103 by:

a. Revising paragraph (a);

b. Revising paragraph (d); and

c. Removing paragraph (e).

The revisions read as follows:

§ 1304.103

Health, safety, and environmental standards

(a) Wastewater. Floating cabins shall comply with § 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 (satisfactory evidence of compliance to be provided to TVA upon request). Upon receipt of documentation that a floating cabin is in violation of any federal, state, or local discharge or water quality regulation by the respective regulatory agency or upon failure to provide satisfactory evidence of compliance at TVA's request, TVA is authorized to 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 or if satisfactory evidence of compliance is not provided to TVA.

* * * * *

(d) Electrical. Floating cabins shall comply with all applicable federal, state, and local laws and regulations regarding electrical wiring and equipment (satisfactory evidence of compliance to be provided to TVA upon request). Upon receipt of documentation that a floating cabin is in violation of any federal, state, or local electrical standard or regulation by the respective regulatory agency or upon failure to provide satisfactory evidence of compliance at TVA's request, TVA is authorized to 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 or if satisfactory evidence of compliance is not provided to TVA. Floating cabins shall comply with § 1304.209(c)(2).

Michael McCall,

Vice President, Environment and Sustainability.