Rule2021-19098
Floating Cabins
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 10, 2021
Effective
October 12, 2021
Issuing agencies
Tennessee Valley Authority
Abstract
The Tennessee Valley Authority (TVA) is publishing a final rule to amend its regulations that govern floating cabins located on the Tennessee River System. The unrestrained mooring of floating cabins on the Tennessee River System, if left unaddressed, would pose unacceptable risks to navigation, safety, the environment, and public lands. These amendments provide health, safety, and environmental standards as well as establish permitting standards with regard to rebuilding, modifying, or combining floating cabins.
Full Text
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<title>Federal Register, Volume 86 Issue 173 (Friday, September 10, 2021)</title>
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[Federal Register Volume 86, Number 173 (Friday, September 10, 2021)]
[Rules and Regulations]
[Pages 50625-50637]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-19098]
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TENNESSEE VALLEY AUTHORITY
18 CFR Part 1304
RIN 3316-AA24
Floating Cabins
AGENCY: Tennessee Valley Authority.
ACTION: Final rule.
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SUMMARY: The Tennessee Valley Authority (TVA) is publishing a final
rule to amend its regulations that govern floating cabins located on
the Tennessee River System. The unrestrained mooring of floating cabins
on the Tennessee River System, if left unaddressed, would pose
unacceptable risks to navigation, safety, the environment, and public
lands. These amendments provide health, safety, and environmental
standards as well as establish permitting standards with regard to
rebuilding, modifying, or combining floating cabins.
DATES: This final rule is effective October 12, 2021.
FOR FURTHER INFORMATION CONTACT: David B. Harrell, 865-632-1327, Email:
<a href="/cdn-cgi/l/email-protection#2743454f465555424b4b6753514609404851"><span class="__cf_email__" data-cfemail="5c383e343d2e2e3930301c282a3d723b332a">[email protected]</span></a> or <a href="/cdn-cgi/l/email-protection#5c3a3f1c282a3d723b332a"><span class="__cf_email__" data-cfemail="503633102426317e373f26">[email protected]</span></a>, Mail address: Tennessee Valley
Authority, 400 West Summit Hill Drive, WT 11A-K, Knoxville, TN 37902.
SUPPLEMENTARY INFORMATION:
Legal Authority
This final rule is 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. Nonnavigable structures, such as floating
cabins, are obstructions that require TVA's 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
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 its
mission, TVA also uses the system to improve water quality and water
supply and to provide a wide range of public benefits, including
recreation and natural resource stewardship.
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.
Since 1971, pursuant to Section 26a, TVA has prohibited the mooring
on the Tennessee River System of new floating cabins (formerly
nonnavigable houseboats) that are designed and used primarily for human
habitation or occupation and not for transportation on the water. In
particular, TVA amended its regulations in 1971 to prohibit the mooring
or anchoring of new nonnavigable houseboats except 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. In 1978, TVA reiterated the prohibited
mooring of nonnavigable houseboats on the Tennessee River System except
for those in existence on or before February 15, 1978.
Despite over 40 years of Section 26a regulations 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 varied widely.
Many members of the general public urged TVA to require the removal
of all floating cabins since 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 blackwater (sewage) and
graywater (showers, sinks, etc.) 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
[[Page 50626]]
documents can be found at <a href="https://www.tva.com/floatingcabins">https://www.tva.com/floatingcabins</a>.
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 program in the interim. On May 5, 2016, the TVA
Board of Directors (Board) adopted the preferred policy, but 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 that were located 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 Board 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 the WIIN Act's
enactment, or (2) for a period of five years if it was not granted a
permit by TVA before the WIIN Act's 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 (83 FR 44467). 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.
Phase II Floating Cabin Amendments
This final rule includes health, safety, environmental, and
permitting standards that will apply to all floating cabins. A diverse
stakeholder group composed of 18 members provided input to 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 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, and
TVA made some modifications after that discussion. TVA published the
proposed rule amendments for a 90-day public comment period on December
10, 2019 (84 FR 67386).
Final Rule
The final rule for floating cabins applies 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 must be registered and obtain a new
permit from TVA.
The final rule allows floating cabin owners additional time to
register with TVA, until December 9, 2021. To obtain a Section 26a
permit, owners of floating cabins will have 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 permit application fee. TVA will not require floating cabin owners
to pay the initial permit application fee if they possess a permit in
their name issued before December 16, 2016, 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 in
full compliance with the existing permit; requests not compliant with
the previous permit will be subject to the standard permit application
fee, and modifications not compliant with the rules will be denied.
The permit application submission date of October 1, 2024, will
give owners nearly four years from the publication of the final
standards to bring structures into compliance. TVA encourages floating
cabin owners to bring floating cabins into compliance and 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 and submit a new application or remove the structure
in accordance with Section 9b of the TVA Act and 18 CFR 1304.406.
Removal
Under the final rule, TVA will have the authority to 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
October 1, 2024, or does not pay the compliance fee if levied by TVA.
The requirement to remove a floating cabin will 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
[[Page 50627]]
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. TVA's current rules prohibit the installation of
unencased flotation to repair or replace existing flotation that is no
longer serviceable. This final rule requires 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 will have 24 months from
notification from TVA to remove and replace it. These changes will
apply to all Section 26a permits, including those authorizing floating
cabins.
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
United States 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: (1) Floating cabin owners must
ensure visibility of all mooring cables and (2) floating cabin owners
must 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's current regulations specify 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 land rights 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, the final
rule prohibits relocation of permitted floating cabins to a different
reservoir. TVA will 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, will require advance approval from TVA in the form
of a new 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 houses rather than vessels, and agencies may
determine to regulate and inspect those within their jurisdiction. If
an agency chooses to regulate, floating cabins will 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 have the authority 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.
In addition to and at a minimum, TVA will 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. TVA's electrical requirements are based on
the 2017 National Electric Code (NEC). Ground fault protection
requirements for floating buildings can be found in Section 553;
requirements for marinas can be found in Section 555. Ground fault is
defined in Section 100. NEC requires underwater cables for floating
buildings to be extra hard usage portable power cables listed for wet
locations and sunlight resistance. NEC table 400.4 provides a listing
of flexible cable types and designations with these ratings.
Wastewater
Floating cabins use various methods to manage their wastewater
(both blackwater and graywater). Some have holding tanks for blackwater
and use pump-out facilities to dispose of it through land-based
systems. TVA has received complaints of some floating cabins
discharging blackwater and/or graywater directly to the reservoir.
Graywater originates from sinks, showers, dishwashers, and washing
machines and is often discharged by floating cabins directly to the
reservoir. Blackwater and graywater discharges can contribute to water
quality deterioration. Discharges are regulated by state environmental
agencies and the EPA.
The final rule requires floating cabin owners to comply with
discharge requirements set by local, state, or federal agencies and
incorporates requirements of Section 401 of the Clean Water Act (CWA).
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 after
notification, TVA will have the authority to revoke the floating
cabin's Section 26a permit and require the structure to be removed from
the Tennessee River System. This should help induce more compliant
behavior and complement federal, state, or local agency efforts.
TVA will require a Section 26a permit for all floating cabins, and
all TVA permits must comply with the 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 structure or
activity will comply with applicable water quality standards or the
certification has been waived. Floating cabin owners must request
certification from the relevant certifying agency when
[[Page 50628]]
applying for a Section 26a permit, and the certifying agency will
determine whether to grant, grant with conditions, deny, or waive the
certification. Some certifying agencies may determine to review and
make one determination that applies to all floating cabins within its
jurisdiction or may review each request for floating cabin permits
individually. The respective certifying agencies will make this
determination.
TVA will not grant a Section 26a permit for a floating cabin or
other obstruction unless a required water quality certification has
been provided or waived by the respective certifying agency. The final
rule allows a reasonable period of time, not to exceed one year, for
the certifying agency to take action. If a certifying agency has not
acted within a reasonable period of time and the certification
requirement is waived, TVA may then proceed with processing the Section
26a application. This will apply to all Section 26a permit
applications, including floating cabins.
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 without TVA's permission. By
way of example, maintenance activities include painting; changing the
internal walls within the existing enclosed space; replacing shingles,
siding, electrical wiring, or plumbing; or adding new encased flotation
that complies with the regulations. Maintenance activities do not
include any activity that would modify any external walls or the
dimensions (length, width, and height) of the floating cabin, including
its enclosed or open spaces.
Any alteration to the dimensions or approved plans for a floating
cabin will be deemed a structural modification and, if approvable,
would require a new permit from TVA. Except for the following three
exceptions, which must be approved in writing in advance by TVA,
alterations will be prohibited. First, an alteration may be allowed if
it is deemed necessary by TVA to comply with health, safety, and
environmental standards. Second, TVA may allow changes in the roof
pitch or allow open portions of the monolithic frame to be covered but
no part of the floating cabin may exceed a total height of 14 feet
above the lowest floor level of the floating cabin. Third, 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; in
which case, at least 24 contiguous square feet of open space with a
minimum width of four feet must be retained on the monolithic frame for
unrestricted boarding and a reduction in the footprint of attached
structures may be required.
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 apply to TVA
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. Construction of the
rebuilt floating cabin must be completed within 18 months of TVA's
written approval to proceed.
Combined Floating Cabins
To encourage reduction of the number and footprint of floating
cabins on the Tennessee River System, TVA is proposing a program that,
with a permit obtained in advance, may allow owners to permanently
remove multiple existing floating cabins and replace them 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
that are to be removed in exchange. The maximum size allowable for the
new structure would be the lesser of 1,000 square feet or the combined
size of the monolithic frames of the removed floating cabins. Any
amount of the combined size exceeding 1,000 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 unrestricted 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.
Attached Structures
With written approval from TVA, floating cabins may be accompanied
by floating attached structures, such as decks, platforms, or Jet Ski
ports. All attached structures must be permitted to the floating cabin
owner, and the owner must provide evidence of approval from the marina
operator. The square footage of attached structures may not be
incorporated into the monolithic frame of the floating cabin. Attached
structures may not exceed 14 feet in height from the lowest floor
level, may not be enclosed, and must comply with 18 CFR 1304.204(p),
which prohibits covered second stories. The total footprint of all
attached structures for a single floating cabin cannot exceed 400
square feet or the total footprint of the existing attached structures
that were part of the floating cabin as of December 16, 2016, whichever
is greater. Floating cabins with attached structures as of this date
may remain with written approval from TVA, but requests to rebuild or
reconfigure the attached structures' square footage must comply with
the requirements above. Requests for certain structural modifications
or a combined floating cabin will require the square footage of the
attached structures to also be reduced to 400 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, the
final rule provides other minor amendments to the Section 26a
regulations. These include changes to the TVA locations where
applications should be 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.
Comments on the Proposed Rule and TVA's Responses
TVA received 62 comments during the public review period, all via
email. Comments were received from 59 individuals (three individuals
sent comments in two separate emails). One email from the Floating Home
Alliance Board of Directors represented the views of many floating
cabin owners. The following discussion describes a summary of the
comments received, provides TVA's response to the comments, and
describes changes, if any, made by TVA to the rule based on the
comments. TVA appreciates the perspectives, interests, and concerns
expressed by all commenters.
[[Page 50629]]
1. Comments Related to Other Section 26a Permitted Structures and the
Need for Section 26a Regulations
Comment: Some commenters stated that TVA's regulations, standards,
and inspections should apply consistently to all structures on TVA
reservoirs, particularly residential docks. Commenters asserted that
TVA is focusing on something that has never been a problem and docks
are far more dangerous, particularly with regard to electrical.
TVA Response: Section 26a of the TVA Act requires the advance
written approval of TVA for all floating cabins, private residential
docks, and other obstructions. Since 1971, TVA has recognized the
necessity to prohibit construction of new nonnavigable houseboats (the
early version of floating cabins) and established regulations
exclusively for their authorization and management on TVA reservoirs.
This was due to their unique nature as a habitable enclosed structure,
their included amenities, and their impacts on navigation, public land,
and water quality. The WIIN Act allows existing floating cabins to
remain on the water only if the owner maintains the structure in
accordance with reasonable health, safety, and environmental standards
set by the Board.
TVA has previously established corresponding standards for private
residential water-use facilities. Subparts C and D of the TVA Section
26a regulations set forth the standards for private water-use
facilities, such as boat docks, in substantial detail and restrict
these facilities in ways that floating cabins are not restricted. For
example, living space or sleeping areas are prohibited; enclosed space
is limited to 32 square feet for storage; and toilets, sinks, and
electrical appliances are not allowed. Electrical lines and service to
private docks must be installed in compliance with all state and local
electrical codes (satisfactory evidence of compliance to be provided to
TVA upon request); and electrical service must be installed with an
electrical disconnect that is located above the 500-year floodplain or
flood risk profile whichever is higher, and is accessible during flood
events.
Floating cabins raise unique safety and environmental concerns
because many, for example, have electrical service supplied by
submerged electrical lines, are equipped with household appliances, and
generate wastewater.
TVA studied the impact of floating cabins in its EIS using an
extensive amount of existing information and additional data collection
and analysis to support its finding of potential impacts to human
health and the environment from floating cabins. These findings were
based on existing information, literature on the known effects on
resources, comments by agencies and the public about impacts that they
experience, internal TVA resource specialists, and professional
judgment. The potential adverse impacts from sewage discharges into
public waterways and the risk and potential harm to the public safety
from poorly maintained electrical wiring are well established and
understood. TVA acknowledged that the severity of current impacts is
not well-sourced in available information. However, TVA concluded in
its EIS that the severity of impacts will increase if the proliferation
of floating cabins is not controlled and operating standards are not
established. It is appropriate that TVA acts to address such potential
impacts before they become severe.
2. Comments Related to Total Footprint
Comment: Floating cabins are typically made up of multiple
sections, the monolithic frame of the main cabin footprint and the
floating attached structures, such as decks and walkways. Numerous
commenters expressed a desire to combine the total footprint of all
components and rebuild to one monolithic frame. The rationale of some
commenters was that it is safer to have fewer structures, would make
the waterway cleaner from the ``mess of lashed together garbage,'' and
is better suited for modern lake activities. Others want to rebuild a
floating cabin to a different configuration and change the size of
enclosed space while not exceeding the total current footprint. Still
others stated that expansions to either the monolithic frame or the
attached structures should be allowed.
TVA Response: One of TVA's management goals of the floating cabin
program is to prevent an increase in total square footage of the
structures. Currently, the total footprint inventory of the monolithic
frames of existing floating cabins is over 1.7 million square feet;
there is an additional 1 million square feet of attached structure
inventory. Allowing the size of the monolithic frames and/or enclosed
space to increase will result in more living space and increased
impacts to water quality, navigation, and privatization of public
waters. For those reasons, floating cabin owners will not be allowed to
incorporate the footprint of attached structures into the footprint of
the monolithic frame. The final rule does provide an opportunity for
floating cabin owners to increase enclosed space on the existing
monolithic frame in exchange for a reduction in the footprint of the
attached structures. This reduction aligns with the comments about
multiple structures pieced together for each floating cabin and the
potential risks they pose. TVA also made modifications to the draft
rule to clarify that reconfigurations of attached structures could be
considered so long as the total footprint did not exceed the specified
limits.
3. Comments Opposing a Reduction of Attached Structures Footprint to
250 Square Feet
Comment: TVA's draft rule proposed that floating cabin owners would
be required to reduce attached structures to 250 square feet when
requesting certain structural modifications or utilizing the
combination program. Although many comments were received about the
negative effects of multiple attached structures accompanying floating
cabins, some commenters opposed this proposal. The commenters'
rationale was generally that additional enclosed space on the
monolithic frame would not result in an expansion of water space used
and, therefore, would not require a reduction of the attached
structures. Others argued that 250 square feet of open space was too
little to utilize recreationally. Some felt the reduction was a penalty
for making improvements and adding living space to the floating cabin.
TVA Response: TVA agrees that floating cabins should be maintained
in a good state of repair; however, enlarging enclosed space is not a
necessary improvement for enjoyment of existing floating cabins. TVA
will not require a reduction in the attached structures that existed as
of December 16, 2016, unless the owner requests to make certain
modifications to their floating cabin; namely, increasing the enclosed
space on the monolithic frame or utilizing the combination program. To
counter the impacts of the larger living space and to address concerns
of multiple, potentially difficult to manage attached structures, TVA
considers this reduction a reasonable compromise. In response to the
comments on the draft rule, TVA has increased the maximum footprint for
attached structures to 400 square feet.
4. Comments Requesting the Ability To Add Additional Attached
Structures
Comment: Multiple commenters expressed a desire to add additional
attached structures to existing floating cabins. Jet Ski ports were the
most commonly mentioned type of attached
[[Page 50630]]
structure. Some commenters stated these additions were minor in size
and impacts.
TVA Response: The final rule allows for the addition of attached
structures up to a total footprint of 400 square feet. TVA calculates
footprint as the rectangular or square area of the attached structure
(length times width at the structures widest and longest points). The
footprint of each attached structure will be added together to
determine the total footprint. Floating cabins accompanied by attached
structures of a greater footprint that existed as of December 16, 2016,
may remain. Attached structures could be modified to add additional
items, such as Jet Ski ports, or different configurations as long as
the total footprint remains the same. All items that consume water
surface area will be calculated in the total footprint. While the
individual impacts from adding additional structures to any individual
floating cabin may be minor, the cumulative impacts of these additions
could result in a significant increase in square footage of occupied
surface area on the reservoirs. One of TVA's goals is to prevent
floating cabins from taking up additional square footage on the water.
5. Comments Related to the Combination Program
Comment: Multiple commenters requested that TVA increase the
maximum size of a combined floating cabin; some suggested 1,800 square
feet, one suggested 2,000 square feet, and one suggested no size
limitation.
TVA Response: TVA's goal with the combination program is to reduce
the number and footprint of floating cabins on the Tennessee River
System, especially those in a state of disrepair. Analysis of TVA's
inventory data revealed that a significant majority of floating cabins
are smaller than 1,000 square feet. The 1,000-square-foot maximum
provides floating cabin owners adequate incentive to utilize the
program while staying in line with TVA's goals for the floating cabin
program. This size is also consistent with TVA's residential dock
footprint standards.
6. Comments Related to Mooring Requirements
Comment: Multiple commenters stated that mooring compliance should
be the responsibility of the marina owner, not the floating cabin
owner. Others opposed TVA's restriction against securing mooring lines
to trees on TVA property.
TVA Response: Multiple mooring systems are utilized across TVA
reservoirs that are dependent on topography, reservoir level
fluctuations, and level of effort to manage. TVA will permit the
mooring obstructions accordingly. For example, in marinas where the
floating cabins are moored independently to the bottom of the reservoir
and the floating cabin owner is responsible for the purchase and
installation of that mooring system, TVA will consider permitting the
mooring infrastructure to the floating cabin owner. In other cases
where the marina operator installs a mooring grid and each floating
cabin anchors to the grid, the components of the mooring system will be
permitted to each responsible party (i.e., mooring grid is the
responsibility of the marina owner, individual anchors are the
responsibility of the floating cabin owner). TVA will continue to
prohibit the anchoring of all cables, chains, and poles (for both
floating cabins and other water-use facilities) to trees on TVA
property. Anchoring to trees on private property will require
permission from the private property owner.
7. Comments Related to Wastewater
Comment: Some commenters requested strict enforcement of wastewater
discharge regulations. Others agreed that wastewater restrictions
should align with local or state requirements. One commenter stated it
was impractical to request the collection and/or purification of
graywater and believed effects from graywater discharge were a non-
issue.
TVA Response: Discharges of blackwater and graywater are regulated
by the EPA and the state agencies that are responsible for issuing
National Pollutant Discharge Elimination System permits for facilities
that discharge sewage or other wastewater. Pursuant to Section 401 of
the Clean Water Act, if a structure or activity for which federal
approval is sought may result in any discharge into navigable waters of
the United States, then the applicant must also request certification
from the relevant state certifying agency when applying for a Section
26a permit. If the certifying agency denies certification on
appropriate grounds, TVA will not be able to issue the Section 26a
permit. If the certifying agency grants certification with appropriate
conditions, those conditions are required to be incorporated in the
Section 26a permit. If the conditions of that certification are
violated or TVA is notified of an unresolved violation by one of these
regulatory agencies, TVA is authorized to revoke the Section 26a permit
and require removal of the floating cabin in compliance with the WIIN
Act.
8. Comments Related to Electrical Requirements
Comment: Some commenters requested clarification on the electrical
inspection requirements. Others asked for more details on the equipment
necessary to comply with the rule.
TVA Response: In response to the comments, TVA has clarified its
intent regarding electrical inspections and clarified the inspection
interval. While specific requirements and equipment are subject to
National Electric Code standards, TVA will provide examples of
equipment and installation options on its website at <a href="http://www.tva.com/floatingcabins">www.tva.com/floatingcabins</a>.
9. Comments Related to Flotation
Comment: Most comments related to flotation were complimentary of
TVA's proposal to eliminate all unencased flotation by 2031. A few
commenters requested that TVA make this a requirement earlier than
2031.
TVA Response: TVA has prohibited the use of new unencased
floatation since 2003. Because this requirement applies to all
obstructions (including, but not limited to, residential docks and
marina facilities), the final rule includes the proposed deadline. In
the event that TVA deems existing flotation is no longer serviceable,
it must be replaced within 24 months of notification from TVA.
10. Comments Related to Manufactured Houseboats and Other Structures
Comment: Some commenters expressed concerns with manufactured
houseboats being considered floating cabins. They felt that since
vessels are already regulated, additional regulation as floating cabins
was unnecessary. Others commented on the floating docks and other
attached structures associated with some navigable houseboats. Some
commenters expressed their desire for only these ``mooring docks'' to
be considered floating cabins while arguing that the houseboats moored
to the docks should not be regulated as floating cabins, but instead as
vessels.
TVA Response: The determination of a structure as a floating cabin
is in TVA's sole discretion and its judgment will be guided by criteria
defined in previous rule amendments. It is not TVA's intent to regulate
vessels. With regard to docks and other water-use facilities not
associated with floating cabins, those structures are regulated under
TVA's Section 26a jurisdiction and approval is subject to the
applicable regulations. In general, individually-
[[Page 50631]]
owned ``mooring docks'' or other water-use facilities in marina harbor
limits associated with a vessel will not be permitted and will not be
considered a floating cabin.
11. Comments Related to the WIIN Act Effective Date
Comment: Some commenters requested that TVA use a later date than
December 16, 2016, for the date on which floating cabins and attached
structures are considered existing and allowed to remain on the
reservoirs if they comply with TVA's regulations. The main reason
stated in support of this request is that many floating cabin owners
were not aware of the new regulations before this date.
TVA Response: TVA has formally engaged the public and floating
cabin community related to its review of these structures since April
30, 2014, when it published the Notice of Intent to assess impacts of
floating cabins and invited public comments on scoping. TVA's Draft EIS
was published in June 2015, which included proposed standards for
regulation. Various opportunities for public engagement and education
have been offered, including the Board's public listening sessions.
December 16, 2016, is the date selected by Congress when it passed the
WIIN Act. Pursuant to the WIIN Act, TVA published this ``cutoff date''
in the prior Section 26a rule amendments.
12. Comments Related to Fees
Comment: Commenters had questions and requested clarification about
the fees TVA will charge. One commenter stated that TVA is collecting
an excessive amount of money for registration, transfer, alteration,
combination, relocation, and yearly fees with no transparency or
accountability.
TVA Response: TVA has standard permit application fees that apply
to all Section 26a requests, including floating cabins. Currently, the
standard permit application fee for a minor activity, which includes
most floating cabins, is $500. Modifications to an existing obstruction
require a new permit, and the application fee is $500. The application
fee for a change in ownership with no associated modifications is $250.
Requests for major construction activities are assessed a $1,000
application fee and are full cost recovery. There is no fee for
registration of a floating cabin.
Section 26a permit application fees are governed by TVA's
Administrative Cost Recovery regulations (18 CFR part 1310) and are
assessed per application, regardless of the number of items requested
in a single application (there is not an additional fee for each item
requested). While TVA was granted the authority by the WIIN Act to levy
a compliance fee for floating cabins, TVA will not establish that
charge at this time.
13. Comments in Support of the Final Rule
Comment: Numerous commenters expressed general support for the
final rule amendments. Many expressed appreciation for TVA's
collaborative approach at managing the Floating Cabin Program and
drafting reasonable regulations. Others commented that TVA's
documentation, inventory, registration, and inspection of floating
cabins is an appropriate way to ensure owners are held accountable for
properly maintaining their structures. Others emphasized that TVA
should regularly and fairly enforce the regulations.
TVA Response: TVA acknowledges these comments and agrees with the
need to have reasonable standards and rules, have consistent
enforcement of regulations, and avoid overly burdensome requirements.
TVA appreciates the input and feedback received from the stakeholder
group.
III. Administrative Requirements
A. Unfunded Mandates Reform Act, National Environmental Policy 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
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 <a href="https://www.tva.com/floatingcabins">https://www.tva.com/floatingcabins</a>. One of the alternatives evaluated by TVA in the EIS was
to approve and issue permits for the mooring of existing floating
cabins that meet new minimum standards and to prohibit new floating
cabins. TVA previously published a final rule that 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. This
final rule establishes minimum health, safety, environmental, and
permitting standards that existing floating cabins will be required to
meet. TVA's analysis of this alternative in the EIS determined that
prohibiting new floating cabins and applying new standards would result
in minor beneficial impacts to many resource areas (e.g., water
quality, recreation, cultural resources), but that the alternative may
result in significant economic effects to some floating cabin owners or
marina operators, depending on the extent to which their floating cabin
would need to be updated to meet the new standards.
This final rule is a ``significant regulatory action'' under the
criteria set forth in section 3(f) of Executive Order 12866,
``Regulatory Planning and Review.'' 58 FR 51735 (October 4, 1993).
Accordingly, this action was subject to review by the Office of
Information and Regulatory Affairs (``OIRA'') in the Office of
Management and Budget (``OMB''). TVA has determined it will not have an
economically 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. TVA estimates there are
approximately 2,200 floating cabins on the Tennessee River System.
TVA's estimate on compliance costs include the following ranges for
each Floating Cabin provision: (1) Wastewater: $4,000-$8,000; (2)
flotation: $10,000-$15,000; (3) mooring: $3,000-$5,000; (4) electrical:
$250-$5,000. Most of the costs described are one-time investments, and
not every floating cabin will require modifications in each area as
many are already in compliance with one or more of the new provisions.
As a result, this final rule will not exceed $100 million in annual
impact.
This final rule contains no federal mandates for state, local, or
tribal government or for the private sector. The rule 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
[[Page 50632]]
Indian tribes. Nor will the rule 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, the final rule updates or clarifies TVA's
regulations relating to the standards that floating cabins will be
required to meet in order to remain on the Tennessee River System. The
final rule will 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 final rule 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 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.
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 final rule
tangentially impacts marinas that accommodate floating cabins, this
represents only 29% of marinas on TVA reservoirs. 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.
C. Paperwork Reduction Act Title of Information Collection
Section 26a Permit Application.
OMB Approval Number: 3316-0060.
This rule contains information collection requirements for
registration and permitting of floating cabins, which were approved by
the Office of Management and Budget (OMB) on June 18, 2019.
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 amends 18 CFR part 1304 of the Code of Federal Regulations 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. Revising paragraphs (a) and (b);
0
b. Revising the first sentence of paragraph (c)(1) introductory text;
0
c. Revising paragraph (c)(1)(i);
0
d. Revising paragraph (c)(1)(ii)(A);
0
e. Revising the first sentence of paragraph (c)(2)(i) introductory
text;
0
f. Revising paragraph (c)(2)(ii)(A); and
0
g. Revising paragraph (d).
The additions and revisions read as follows:
Sec. 1304.2 Application.
(a) If the facility is to be built on TVA land, the applicant must,
in addition to the other requirements of this part, own the fee
interest in or have an adequate leasehold or easement interest of
sufficient tenure to cover the normal useful life of the proposed
facility in land immediately adjoining the TVA land. If the facility is
to be built on private land, the applicant must own the fee interest in
the land or have an adequate leasehold or easement interest in the
property where the facility will be located. If the facility is an
existing floating cabin, it must meet the requirements of subpart B.
TVA recognizes, however, that in some cases private property has been
subdivided in a way that left an intervening strip of land between the
upland boundary of a TVA flowage easement and the waters of the
reservoir, or did not convey to the adjoining landowner the land
underlying the waters of the reservoir. In some of these situations,
the owner of the intervening strip or underlying land cannot be
identified or does not object to construction of water-use facilities
by the adjacent landowner. In these situations, TVA may exercise its
discretion to permit the facility, provided there is no objection from
the fee owner of the intervening strip or underlying land. A TVA permit
conveys no property interest. The applicant is responsible for locating
the proposed facility on qualifying land and ensuring that there is no
objection from any owner of such land. TVA may require the applicant to
provide appropriate verification of ownership and lack of objection,
but TVA is not responsible for resolving ownership questions. In case
of a dispute, TVA may require private parties requesting TVA action to
grant or revoke a TVA permit to obtain a court order declaring
respective ownership and/or land rights. TVA may exercise its
discretion to permit a facility on TVA land that is located up or
downstream from the land which makes the applicant eligible for
consideration to receive a permit.
(b) Applications shall be addressed to 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 <a href="/cdn-cgi/l/email-protection#8afae6e3e9cafefceba4ede5fc"><span class="__cf_email__" data-cfemail="5e2e32373d1e2a283f70393128">[email protected]</span></a>. 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, and detailed descriptions of
mooring method, how electrical service is provided, and how wastewater
is managed. An application to relocate a floating cabin to a marina
shall include
[[Page 50633]]
evidence of approval from the accepting marina operator.
(ii) * * *
(A) Be prepared electronically or on paper suitable for
reproduction (no larger than 11 by 17 inches).
* * * * *
(2) * * *
(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) Discharges into navigable waters of the United States. If
construction, maintenance, or operation of the proposed structure or
any part thereof, or the conduct of the activity in connection with
which approval is sought may result in any discharge into navigable
waters of the United States, applicant shall also submit with the
application, in addition to the material required by paragraph (c) of
this section, a copy of the request for certification from the state in
which such discharge would originate, or if appropriate, from the
interstate water pollution control agency having jurisdiction over the
navigable waters at the point where the discharge would originate, or
from the Environmental Protection Agency, that such state or interstate
agency or the Environmental Protection Agency has determined that the
applicant's proposed activity will be conducted in a manner that will
comply with applicable water quality standards. The applicant shall
further submit such supplemental and additional information as TVA may
deem necessary for the review of the application, including, without
limitation, information concerning the amounts, chemical makeup,
temperature differentials, type and quantity of suspended solids, and
proposed treatment plans for any proposed discharges. 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 a
reasonable period of time, not to exceed one year, of an applicant's
request for certification from the respective agency and certification
is waived, TVA will proceed with processing of the section 26a permit
application.
0
3. Amend Sec. 1304.10 by:
0
a. Revising paragraph (b)(2) and
0
b. Adding paragraph (c).
The addition and revision read as follows:
Sec. 1304.10 Change in ownership of approved facilities or
activities
* * * * *
(b) * * *
(2) Obtain TVA approval for any repairs that would alter the size
of the facility, create a structural modification, or for any new
construction.
(c) Change in ownership of a floating cabin is addressed in Sec.
1304.102.
0
4. Revise Sec. 1304.100 to read as follows:
Sec. 1304.100 Scope and intent.
This subpart prescribes requirements for floating cabins on the
Tennessee River System. Floating cabins as applied to this subpart
include existing nonnavigable houseboats approved by TVA and other
existing structures, whose design and use is primarily for human
habitation or occupation and not for navigation or transportation on
the water. Floating cabins that were not located or moored on the
Tennessee River System as of December 16, 2016, shall be deemed new
floating cabins. New floating cabins are prohibited and subject to the
removal provisions of this part and Section 9b of the TVA Act. No new
floating cabins shall be moored, anchored, or installed on the
Tennessee River System. Floating cabins that were located or moored in
the Tennessee River System as of December 16, 2016, shall be deemed
existing floating cabins. 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 October
12, 2021. 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. Revise Sec. 1304.101 to read as follows:
Sec. 1304.101 Floating cabins.
(a)(1) Floating cabins include nonnavigable houseboats approved by
TVA as of 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 as of December 16, 2016. If, at any time,
the floating cabin is modified such that it no longer meets the
criteria to be deemed a floating cabin, the approval for that existing
floating cabin will be terminated. TVA's judgment will be guided by,
but not limited to, the following factors:
(i) Whether the structure is usually kept at a fixed mooring point;
(ii) Whether the structure is actually used on a regular basis for
transportation or navigation;
(iii) Whether the structure has a permanent or continuous
connection to the shore for electrical, plumbing, water, or other
utility service;
(iv) Whether the structure has the performance characteristics of a
vessel typically used for navigation or transportation on water;
(v) Whether the structure can be readily removed from the water;
(vi) Whether the structure is used for intermittent or extended
human-habitation or occupancy;
(vii) Whether the structure clearly has a means of propulsion, and
appropriate power/size ratio;
(viii) Whether the structure is safe to navigate or use for
transportation purposes.
(2) That a structure could occasionally move from place to place,
or that it qualifies under another federal or state regulatory program
as a vessel or boat, are factors that TVA also will consider but would
not be determinative. Floating cabins are not recreational vessels to
which Sec. 1304.409 applies.
(b) Owners of floating cabins are required to register the floating
cabin with TVA by January 10, 2022. Floating cabin owners shall include
the following information with their registration: 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 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 wastewater and sewage are managed; and an
owner's signature.
(c) All floating cabins shall comply with the rules contained in
this part and make application for a section 26a permit by October 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.
[[Page 50634]]
(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 as of 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 as of 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 as of
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.
(f) Applications for mooring of a floating cabin outside of
designated harbor limits will be disapproved if TVA determines that the
proposed mooring location would be contrary to the intent of this
subpart.
(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 the dimensions (length, width, and height)
of the floating cabin, any external walls, 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 changes in roof pitch or allow open portions of
the monolithic frame to be covered, but no part of the floating cabin
may exceed a total height of 14 feet above the lowest floor level; or
(iii) 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, subject to Sec. 1304.101(i). At least 24
contiguous square feet of open space with a minimum width of four feet
shall be maintained on the monolithic frame for unrestricted boarding.
(3) Owners must submit an application to TVA 60 days in advance of
proposed rebuilding of a floating cabin or a significant portion of a
floating cabin. 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 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 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; attached structures are subject to Sec. 1304.101(i).
(4) 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:
(i) Prior written approval from TVA shall be obtained before taking
any actions. 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.
(ii) 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. Construction on the
new combined floating cabin must be completed within 18 months.
(iii) 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.
(iv) 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 unrestricted boarding
of the combined floating cabin. Any square footage of the existing
exchanged floating cabins that exceeds the maximum allowable total size
of the combined floating cabin is not transferrable to other projects
or owners.
(v) The maximum height of any part of the combined floating cabin
is 14 feet above the lowest floor level.
(vi) Floating attached structures, such as decks or platforms, are
subject to Sec. 1304.101(i).
(i) With written approval from TVA, floating cabins may be
accompanied by floating attached structures subject to the following:
(1) A single floating cabin may have multiple floating attached
structures. The footprint of each attached structure will be measured
as a rectangular or square area. The total footprint of all attached
structures for a single floating cabin cannot exceed 400 square feet or
the total footprint of the existing attached structures that were part
of the floating cabin as of December 16, 2016, whichever is greater.
(2) The footprint of the attached structures shall not be
incorporated into the footprint of the monolithic frame of the floating
cabin.
(3) Attached structures shall not exceed 14 feet in height from the
lowest floor level, shall not be enclosed, and shall comply with Sec.
1304.204(p).
(4) All attached structures must be permitted to the floating cabin
owner. The owner shall provide evidence of approval from the marina
operator for the attached structures.
(5) Existing attached structures that were part of the floating
cabin as of December 16, 2016, may remain with written approval from
TVA. Any requests to rebuild or reconfigure attached structures must
comply with
[[Page 50635]]
Sec. 1304.101(i)(1) through (4). Attached structures associated with a
request for a structural modification as described in Sec.
1304.101(h)(2)(iii) or a combined floating cabin as described in Sec.
1304.101(h)(4) shall not exceed a total footprint of 400 square feet.
(j) 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 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 floating cabin 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 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 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.
(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 land rights 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. 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 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.
Floating cabins shall comply with Sec. 1304.209(c)(2).
(e) Electrical certifications. Floating cabin owners shall provide,
in a form acceptable to TVA, certification of compliance with the
electrical standards of paragraphs (e)(1) and (2) of this section with
their initial permit application, no later than October 1, 2024, and by
October 1 of every even-numbered year 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 ten 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 ten 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) If power is supplied to the floating cabin by an underwater
cable, the portable power cable 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 October 12, 2021, 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
[[Page 50636]]
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. 1304.211 by revising paragraph (d)(2) to read as
follows:
Sec. 1304.211 Change in ownership of grandfathered structures or
alterations.
* * * * *
(d) * * *
(2) Obtain TVA approval for any repairs that would alter the size
of the facility, create a structural modification, for any new
construction, or for removal of trees or other vegetation (except for
mowing of lawns established prior to November 1, 1999).
0
10. 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
11. 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 TVA flowage easement generally does not
require approval by TVA. * * *
0
12. 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 after December 31, 2031, will be subject to removal under
Sec. 1304.406. Use or reuse 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 crack, peel,
fragment, become water-logged, 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
13. Revise the first sentence of Sec. 1304.406 to read as follows.
Sec. 1304.406 Removal of unauthorized, unsafe and derelict
structures or facilities.
If, at any time, any dock, wharf, boathouse (fixed or floating),
floating cabin, outfall, aerial cable or other fixed or floating
structure or facility (including any navigable boat or vessel that has
become deteriorated or is a potential navigation hazard or impediment
to flood control) is anchored, installed, constructed or moored in a
manner inconsistent with this part, or is not constructed in accordance
with TVA's approval or plans approved by TVA, or is not maintained or
operated so as to remain in accordance with this part and such approval
or plans, or is not kept in a good state of repair and in good, safe
and substantial condition, and the owner or operator thereof fails to
repair or remove such structure (or operate or maintain it in
accordance with such approval or plans) within ninety (90) days after
written notice from TVA to do so, TVA may cancel any license, permit,
or approval and remove such structure, and/or cause it to be removed,
from the Tennessee River system and/or lands in the custody and control
of TVA. * * *
0
14. Amend Sec. 1304.412 by:
0
a. Adding in alphabetical order the definition of ``Attached
structure'';
0
b. Revising the definition of ``Backlot:;
0
c. Adding in alphabetical order the definition of ``Combined floating
cabin'';
0
d. Revising the definitions for ``Community outlot'', ``Enclosed
structure'', ``Existing floating cabin'';
0
e. Adding in alphabetical order the definition of ``Floating cabin,''
0
f. Revising the definition of ``Footprint'';
0
g. Adding in alphabetical order the definition of ``Monolithic frame'';
0
h. Revising the definitions of ``New floating cabin,'' and
``Rebuilding''; and
0
i. Adding in alphabetical order the definition of ``Structural
Modification''.
The additions and revisions read as follows:
Sec. 1304.412 Definitions.
* * * * *
Attached structure means a floating deck, walkway, platform, slip,
Jet Ski port, or other floating 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.
* * * * *
Enclosed structure means a structure enclosed overhead and on all
sides so as to keep out the weather. Floor space shall not be
considered enclosed if three of the four walls are constructed of wire
or screen mesh from floor to ceiling, and the wire or screen mesh
leaves the interior of the structure open to the weather.
Existing floating cabin means a floating cabin that was located or
moored on the Tennessee River System as of December 16, 2016.
Floating cabin means a nonnavigable houseboat approved by TVA as of
December 16, 2016, and other floating structures moored on the
Tennessee River System 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.
* * * * *
Footprint means the total water surface area of either a square or
rectangular shape occupied by a floating
[[Page 50637]]
cabin or adjoining property owner's dock, pier, boathouse, or
boatwells.
* * * * *
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).
New floating cabin means a floating cabin that was not located or
moored on the Tennessee River System as of December 16, 2016.
* * * * *
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), footprint, or approved plans of a structure.
* * * * *
Allen A. Clare,
Vice President, River and Resources Stewardship.
[FR Doc. 2021-19098 Filed 9-9-21; 8:45 am]
BILLING CODE 8120-08-P
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</html>Indexed from Federal Register on September 10, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.