Comment on FR Doc # E8-16496

1. RENEWALS – Reclamation’s authority to terminate permits unilaterally is arbitrary. a. 73 Fed. Reg. 42,236, 42,242 (July 18, 2008): “Such renewals will be for a period not to exceed 20 years . . . .”; § 429.32(e): “Any renewal of use authorizations for existing private exclusive recreational or residential uses . . . will not exceed 20 year terms.” Does the rule allow for existing private dock permits to be issued for a 20-year period? The preamble and rule should be revised to make unambiguous that, while the term of renewal of any existing private exclusive recreational or residential use may not exceed 20 years, the sum of renewals over time could exceed 20 years and has no current maximum duration. Put another way, the rule should make clear that a 20-year permit could be renewed for a subsequent 20- year period again and again. The preamble should also set out the intent of § 429.32(e). b. § 429.28(a)(3): “Reclamation may, at any time . . . unilaterally terminate the use authorization if Reclamation determines that . . . .” The rule as written would appear to grant Reclamation the ability to terminate a dock permit for one of the reasons listed in § 429.28(a)(3) without any advance notice to the permit holder or an opportunity for the permit holder to respond. The compliance review under § 429.32(b) appears to apply only to the criteria listed under § 429.32(a)(1)-(5), and the public comment process under § 429.32(b) appears to apply only to determinations made under § 429.32(a)(2); there does not appear to be any provision in the rule for advance notice to the permit holder or an opportunity for the permit holder to rebut if Reclamation were to terminate under § 429.28(a)(3). The rule should be revised so that Reclamation shall provide a permit holder whose permit is targeted under § 429.28(a)(3) with notice that the permit is being considered for termination, Reclamation’s asserted basis or bases for the termination, and a meaningful opportunity for the permit holder to be heard to rebut Reclamation’s asserted basis or bases. c. § 429.28(a)(3)(i) (emphasis added): “Reclamation may, at any time . . . unilaterally terminate the use authorization if Reclamation determines that: (i) . . . a higher public use is identified . . . . ” The rule should identify the factors or procedures that Reclamation shall use to determine whether a “higher public use” does or does not exist. The rule’s preamble should also provide examples of specific public uses that are not “higher” than specific private exclusive recreational or residential uses. Without such factors and examples, the risk is that any proposed public use could be deemed “higher” than every exisiting private exclusive recreational or residential use, thus leading to the possible termination under § 429.28(a)(3)(i) of any and every existing private exclusive recreational or residential use. d. § 429.28(a)(5) (emphasis added): “Reclamation may, at any time . . . unilaterally terminate any use authorization if the grantee fails to comply with all applicable Federal, State, and local laws, regulations, ordinances, or terms and conditions of any use authorization . . . .” The rule should define “applicable.” The rule should also make unambiguous whether a violation of Federal, State, or local law, regulations, or ordinances wholly unrelated to an individual’s permit could result in the loss of his or her permit or whether only those violations of law that are materially related to the use authorization can result in the lose of the permit. e. § 429.28(b): “The Regional Director may . . . modify these terms and conditions with respect to the contents of the use authorization to meet local and special conditions.” Please provide an example of how this local decision-making might be used at Lake Cascade. f. § 429.32(g): “Renewal decisions of use authorizations for existing private exclusive recreational or residential uses located on Reclamation land, facilities, and waterbodies will be made by the Regional Director.” Does this mean all Lake Cascade renewal decisions will currently be made by Bill McDonald? g. When the dock permit is up for renewal will the Bureau of Reclamation automatically send out the required paperwork or will the permit holder be required to monitor permit expiration date and prepare the appropriate paperwork? 2. OWNERSHIP TRANSFER – The rule provides no assurance that a dock permit will transfer automatically with the transfer of the adjoining cabin or lot. a. § 429.30: “Your use authorization may not be transferred or assigned to others without prior written approval of Reclamation . . . .” The rule requires Reclamation’s prior written approval to transfer a dock permit but gives no assurance that Reclamation will automatically transfer the dock permit in conjunction with the transfer in ownership of the adjoining cabin or lot, nor does it describe the criteria under which such transfer would or would not be approved. Without an automatic right of transfer, Reclamation could gradually eliminate private boat docks by not granting the right of transfer: the subsequent owner of the lot or cabin would not control the dock and the owner of the dock may not be able to access the dock. The right to transfer should be automatic, not discretionary, by Reclamation. At a very minimum the regulations should describe the criteria to be used in determining whether such transfer will be approved or denied. 3. USE FEES – The rule needs clarification as to the basis for calculating use fees. a. § 429.23: “The use fee is based on a valuation or by competitive bidding. Use fees may be adjusted as deemed appropriate by Reclamation to reflect current conditions . . . .” Please explain how use fees have been determined for Lake Cascade docks and why permit holders have seen double-digit fee escalation over the past 15 years. This increase is significantly greater than the previous Reclamation guidelines of a four percent increase. Example from one permit holder: Year 5 – Year Permit Cost % Change from Prior Permit 1993 $ 657 400% 1998 $ 1,012* 54%* 2003 $ 1,560 54% *Estimated at midpoint of 1993 & 2003 fees. Stated increases from Reclamation in 1990s were four percent annual increases beginning with $150 in 1992 and 16% discounts for 5-year payments in full. 4. HEAVY-HANDED PENALTIES – Some of the rule’s penalties are unreasonably harsh and appear structured more toward the goal of ultimately terminating permits than to being reasonable sanctions. a. § 429.28(a)(4): “Further, failure to construct or use for any continuous 2- year period may constitute a presumption of abandonment of the requested use and cause termination of the use authorization.” If a permit holder’s dock were destroyed by weather, if he or she were financially unable to reconstruct a replacement within two years, and if he or she nonetheless paid his or her dock permit fees, why should he or she lose the right to rebuild when his or her personal finances allowed? The presumption-of-abandonment provision should be deleted as to existing permits. b. § 429.33(a): “Unauthorized use . . . may be subject to legal action including . . . fine and/or imprisonment for up to 6 months . . . .” Please identify a scenario where a 6-month jail term would be appropriate for the unauthorized use of a boat dock. In summary, there appears to be a lot of animosity on the part of the Bureau of Reclamation toward the users. I am not certain where that comes from. Perhaps Dirk Kempthorne could explain that to us at the meeting on August 20.