Rule2025-00510
Joint Policies of the Departments of the Interior and of the Army Relative to Reservoir Project Lands
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Published
January 16, 2025
Effective
April 16, 2025
Issuing agencies
Interior Department
Abstract
We, the Department of the Interior (DOI), are revising regulations that govern DOI's internal real property acquisition policies for reservoir lands. This direct final rule adds a section to allow deviations for the acquisition of less than fee title realty interests in and around reservoirs owned by DOI and typically only those constructed before 1962, a relatively infrequent occurrence.
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<title>Federal Register, Volume 90 Issue 10 (Thursday, January 16, 2025)</title>
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[Federal Register Volume 90, Number 10 (Thursday, January 16, 2025)]
[Rules and Regulations]
[Pages 4669-4671]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-00510]
[[Page 4669]]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 8
[Docket No. DOI-2024-0017; 256D0102DM, DS6CS00000, DLSN00000.000000,
DX6CS25]
RIN 1093-AA29
Joint Policies of the Departments of the Interior and of the Army
Relative to Reservoir Project Lands
AGENCY: Office of the Secretary, Interior.
ACTION: Direct final rule.
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SUMMARY: We, the Department of the Interior (DOI), are revising
regulations that govern DOI's internal real property acquisition
policies for reservoir lands. This direct final rule adds a section to
allow deviations for the acquisition of less than fee title realty
interests in and around reservoirs owned by DOI and typically only
those constructed before 1962, a relatively infrequent occurrence.
DATES: This direct final rule is effective April 16, 2025 without
further action, unless significant adverse comment is received by March
17, 2025. If significant adverse comment is received, we will publish a
timely withdrawal of the rule in the Federal Register.
ADDRESSES: You may submit comments by one of the following methods:
<bullet> Electronically: Go to the Federal eRulemaking Portal:
<a href="https://www.regulations.gov">https://www.regulations.gov</a> and search for Docket Number DOI-2024-0017.
Follow the instructions for submitting comments.
<bullet> By hard copy: Submit by U.S. mail to U.S. Department of
the Interior, Office of the Solicitor, 960 South Broadway, Suite 400,
Boise, ID 83706, Attention: Jeremiah Williamson.
See Public Comments under SUPPLEMENTARY INFORMATION for more
information about submitting comments.
FOR FURTHER INFORMATION CONTACT: Jeremiah Williamson, Senior Attorney,
<a href="/cdn-cgi/l/email-protection#7b111e091e16121a13550c121717121a160814153b081417551f1412551c140d"><span class="__cf_email__" data-cfemail="c1aba4b3a4aca8a0a9efb6a8adada8a0acb2aeaf81b2aeadefa5aea8efa6aeb7">[email protected]</span></a>, (208) 334-1915. Individuals in the
United States who are deaf, deafblind, hard of hearing, or have a
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Purpose of Direct Final Rule and Next Steps
The purpose of this direct final rule is to revise 43 CFR part 8 by
adding section 8.7, Interior Deviations, which solely establishes
internal DOI policy for acquisition of certain reservoir realty
interests. This revision is only a change in internal policy for a
particular and relatively infrequent circumstance; namely, the
acquisition of interests in realty in and around reservoirs owned by
Interior and typically only those constructed before February 21, 1962,
when the policies in 43 CFR part 8 first took effect. It allows future
DOI acquisitions to be consistent with historical acquisition practices
on existing reservoirs that differed from the policies in 43 CFR part
8.
We are publishing this rule without a prior proposal because this
is a noncontroversial action relating to agency management that, in the
best interest of the public, should be undertaken as quickly as
possible. This rule will be effective, as published in this document,
on the effective date specified above in the DATES section of this
document, unless we receive significant adverse comments on or before
the comment due date specified above in DATES. Significant adverse
comments are comments that provide strong justification as to why our
rule should not be adopted or why it should be changed.
If we receive significant adverse comments, we will publish a
document in the Federal Register withdrawing this rule before the
effective date, and we will determine whether to engage in the normal
rulemaking process to promulgate changes to 43 CFR part 8.
Public Comments
You may submit your comments regarding this direct final rule by
one of the methods listed in ADDRESSES. Please include sufficient
information with your comments that allows us to verify information you
include. We will not consider comments sent by email or fax, or to an
address not listed in ADDRESSES. We will not consider hand-delivered
comments, or mailed comments that are not postmarked by the date
specified in DATES.
We will post all comments on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. This
generally means that we will post any personal information you provide
us. Before including your address, phone number, email address, or
other personal information in your comment, you should be aware that
your entire comment--including your personal identifying information--
may be made publicly available at any time. While you can ask us in
your comment to withhold your personal identifying information from
public review, we cannot guarantee that we will be able to do so.
Comments we receive will be available for public inspection on the
internet at <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Please note that comments
posted to <a href="https://www.regulations.gov">https://www.regulations.gov</a> are not immediately viewable.
When you submit a comment, the system receives it immediately. However,
the comment will not be publicly viewable until we post it, which might
not occur until several days after submission.
Background
In 1962, DOI and the Department of the Army (Army) published in the
Federal Register a joint policy requiring each Department to obtain fee
simple title to lands acquired for reservoir inundation, specifically
those lands ``below the maximum flowage line of the reservoir.'' The
policy did not permit exceptions for lands lying within the ``storage
pool'' of the reservoir. Four years later, DOI and Army promulgated a
direct final rule (31 FR 9108, July 2, 1966) to codify this policy at
43 CFR part 8, Joint Policies of the Departments of the Interior and of
the Army Relative to Reservoir Project Lands. Not long thereafter, in
1969, the Government Accounting Office, now known as the Government
Accountability Office, published a report criticizing the policy,
finding it had resulted in excessive Federal expenditures on
unnecessary realty acquisitions; specifically acquisitions of fee
simple title when ``less costly flowage easements would have
sufficed.'' Elmer B. Staats, Report to the Congress: Review of Policies
and Practices for Acquiring Land for Reservoir Projects, Government
Accounting Office (Feb. 3, 1969), <a href="https://www.gao.gov/assets/b-118634-087811.pdf">https://www.gao.gov/assets/b-118634-087811.pdf</a>.
On January 15, 1979, the U.S. Army Corps of Engineers (Army Corps)
promulgated a direct final rule at 32 CFR 644.4(b) (44 FR 3168) to
revise Army's policy and treat the 43 CFR part 8 rule only as
``guidelines.'' In 2018, Congress directed the Army Corps to ``first
consider the minimum interest in real property necessary to support the
water resources development project for which such interest is
acquired,'' including ``a temporary easement or other interest designed
to reduce the overall cost of the water resources development project
for which such interest is acquired, reduce the time to complete such
project, and minimize conflict with property owners related to
[[Page 4670]]
such project.'' 33 U.S.C. 598a. The Army Corps' Real Estate Handbook
also treats the 43 CFR part 8 rule as guidelines and not mandatory.
U.S. Army Corps of Engineers, Real Estate Handbook Ch. 12, sections 12-
5, 12-9, and 12-12.
This direct final rule formalizes similar policy for DOI. This rule
will allow DOI greater flexibility in its acquisition of realty
interests for reservoir lands to account for site-specific
circumstances that can warrant utilization of flowage easements, rather
than fee simple title, where DOI determines it is in the best interests
of the United States. Such site-specific circumstances can include, for
example, new acquisition of realty interests in parcels on which DOI
had previously acquired a less than fee title interest, such as a
flowage easement. It will also allow for more consistency in Federal
acquisition of reservoir lands. This flexibility is expected to
accomplish similar goals that Congress sought for the Army Corps:
namely, reductions in the cost and time to complete water resources
development projects and minimization of conflicts with property
owners.
Compliance With Other Laws, Executive Orders, and Department Policy
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866, as amended by Executive Order 14094,
provides that the Office of Information and Regulatory Affairs in the
Office of Management and Budget will review all significant rules. The
Office of Information and Regulatory Affairs has determined that this
rule is not significant.
Executive Order 13563 reaffirms the principles of Executive Order
12866 while calling for improvements in the Nation's regulatory system
to promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. Executive Order 13563 also directs agencies to consider
regulatory approaches that reduce burdens and maintain flexibility and
freedom of choice for the public where these approaches are relevant,
feasible, and consistent with regulatory objectives. Executive Order
13563 emphasizes further that regulations must be based on the best
available science and that the rulemaking process must allow for public
participation and an open exchange of ideas. We have developed this
rule in a manner consistent with these requirements.
Regulatory Flexibility Act
This rule will not have a significant regulatory effect on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.) because it only governs internal DOI policy
for acquisition of reservoir lands.
Congressional Review Act
The Congressional Review Act (CRA) defines a rule as major if it
meets any of three criteria. The three criteria are:
(a) Does the rule have an annual effect on the economy of $100
million or more?
(b) Will the rule cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions?
(c) Does the rule have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises?
This rule will not cause any of the aforementioned effects and thus
is not a major rule under the CRA.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
Tribal governments or the private sector of more than $200 million per
year. This rule does not have a significant or unique effect on State,
local, or Tribal governments or the private sector. A statement
containing information required by the Unfunded Mandates Reform Act (2
U.S.C. 1531 et seq.) is not required.
Takings (Executive Order 12630)
This rule does not affect a taking of private property or otherwise
have taking implications under Executive Order 12630. This rule is not
a government action capable of interfering with constitutionally
protected property rights. A takings implication assessment is not
required.
Federalism (Executive Order 13132)
Under the criteria in Section 1 of Executive Order 13132, this rule
does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement. It does not have
a substantial direct effect on the States, on the relationship between
the Federal Government and the States, or on the distribution of power
and responsibilities among the levels of government. A federalism
summary impact statement is not required.
Civil Justice Reform (Executive Order 12988)
This rule complies with the requirements of Executive Order 12988.
Specifically, this rule:
(a) meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation, and
(b) meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
Consultation With Indian Tribes (Executive Order 13175)
The DOI strives to strengthen its government-to-government
relationship with Indian Tribes through a commitment to consultation
with Indian Tribes and recognition of their right to self-governance
and Tribal sovereignty. We have evaluated this rule under DOI's
consultation policy and under the criteria in Executive Order 13175 and
have concluded it will have no substantial direct effects on any
federally recognized Indian Tribes, on the relationship between the
Federal Government and Indian Tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian Tribes,
and that consultation is not required. Because, however, the rule will
have the indirect effect of allowing the Cle Elum pool raise project in
central Washington to proceed as planned, the Department has consulted
informally with the Yakama Nation, whose views DOI has fully considered
in this rule. No other potential indirect effects to any federally
recognized Indian Tribes have been identified.
Paperwork Reduction Act of 1995
This rule does not contain information collection requirements and
does not require a submission to the Office of Management and Budget
under the Paperwork Reduction Act.
National Environmental Policy Act
This rule is categorically excluded from National Environmental
Policy Act of 1969 (NEPA) under the DOI categorical exclusion codified
at 43 CFR 46.210(i), which applies to ``Policies, directives,
regulations, and guidelines: that are of an administrative, financial,
legal, technical, or procedural nature; or whose environmental effects
are too broad, speculative, or conjectural to lend themselves to
meaningful analysis and will later be subject to the NEPA process,
either collectively, or case-by-case.'' This rule establishes internal
policy on DOI's reservoir realty
[[Page 4671]]
acquisitions. The policy is administrative (how DOI chooses to own real
property), financial (how much DOI expends for real property), and
legal (how different property interests serve legal needs on individual
reservoir projects). The type of realty interest DOI owns for reservoir
inundation will not alter the effects resulting from inundation, which
are subject to project specific NEPA analysis. While this rule could
theoretically have negligible causally removed socioeconomic effects
related to different opportunities available to owners of inundated
parcels subject to flowage easements versus landowners who have
relinquished title in a fee simple acquisition, any such potential
effects are so intertwined with site specific conditions as to be too
broad, speculative, and conjectural to support meaningful analysis.
Those effects, if any, would be considered in project specific NEPA
analysis in situations where this rule could apply.
Effects on the Energy Supply (Executive Order 13211)
This rule is not a significant energy action under the definition
in Executive Order 13211 and does not require a Statement of Energy
Effects.
List of Subjects in 43 CFR Part 8
Reservoir project lands, Acquisition of easements.
Promulgation of Direct Final Rule
For the reasons stated in the preamble, DOI is amending part 8 of
title 43 of the CFR as set forth below:
PART 8--JOINT POLICIES OF THE DEPARTMENTS OF THE INTERIOR AND OF
THE ARMY RELATIVE TO RESERVOIR PROJECT LANDS
0
1. The authority citation for part 8 continues to read as follows:
Authority: Sec. 7, 32 Stat. 389; sec. 14, 53 Stat. 1197; 43
U.S.C. 421, 389.
0
2. Add Sec. 8.7 to read as follows:
Sec. 8.7 Interior deviations.
On Department of the Interior projects, a bureau director or
secretarial officer may authorize acquisition of easements in lieu of
fee title to property to allow reservoir inundation of lands if the
acquisition meets a combined total of at least five conditions listed
in Sec. 8.3 and in this section:
(a) The reservoir was originally constructed before February 21,
1962.
(b) The current reservoir has utilized more than de minimis
acquisition of easements for inundation.
(c) The acquisition of less than fee title is in the best interests
of the United States.
Joan M. Mooney,
Principal Deputy Assistant Secretary Exercising the Delegated Authority
of the Assistant Secretary--Policy, Management, and Budget.
[FR Doc. 2025-00510 Filed 1-15-25; 8:45 am]
BILLING CODE 4334-63-P
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