[Federal Register Volume 78, Number 135 (Monday, July 15, 2013)]
[Proposed Rules]
[Pages 42030-42034]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-16877]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 207


Reservoirs at Headwaters of the Mississippi River; Use and 
Administration

AGENCY: U.S. Army Corps of Engineers, DoD.

ACTION: Notice of proposed rulemaking and request for comments.

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SUMMARY: The U.S. Army Corps of Engineers is proposing to amend the 
rules regarding use and administration of the reservoirs at the 
headwaters of the Mississippi River by deleting from the Code of 
Federal Regulations all references to minimum discharges and to 
operating limits for the reservoirs. Following extensive public input 
and environmental review, the St. Paul District of the Corps of 
Engineers recently adopted an updated operating plan for the 
Mississippi River Headwaters reservoirs containing minimum flow values 
that differ from those currently codified in the Code of Federal 
Regulations. Deleting all references to minimum flows in the 
regulations will eliminate the current discrepancy between the 
regulations and the approved operating plan for the reservoirs. The 
operating limits are also contained in the operating plan for the 
reservoirs, and eliminating both the minimum flow values and the 
operating limits from the rule will make it unnecessary to amend the 
regulations each time the values are modified in the operating plan in 
the future.

DATES: Submit comments on or before September 13, 2013.

ADDRESSES: You may submit comments, identified by docket number COE-
2013-0008, by any of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    Email: Jerry.W.Webb@usace.army.mil and 
Chandra.S.Pathak@usace.army.mil. Include the docket number, COE-2013-
0008 in the subject line of the message.
    Mail: U.S. Army Corps of Engineers, Attn: CECW-CE (Chandra S. 
Pathak), 441 G Street NW., Washington, DC 20314-1000.
    Hand Delivery/Courier: Due to security requirements, we cannot 
receive comments by hand delivery or courier.
    Instructions: Direct your comments to docket number COE-2013-0008. 
All comments received will be included in the public docket without 
change and may be made available on-line at http://www.regulations.gov, 
including any personal information provided, unless the commenter 
indicates that the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI, or otherwise protected, through regulations.gov or 
email. The regulations.gov Web site is an anonymous access system, 
which means we will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an email 
directly to the Corps without going through regulations.gov, your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, we recommend that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If we cannot read your 
comment because of technical difficulties and cannot contact you for 
clarification, we may not be able to consider your comment. Electronic 
comments should avoid the use of any special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: For access to the docket to read background documents or

[[Page 42031]]

comments received, go to regulations.gov. All documents in the docket 
are listed. Although listed in the index, some information is not 
publicly available, such as CBI or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form.

FOR FURTHER INFORMATION CONTACT: Mr. Jerry W. Webb, Headquarters, U.S. 
Army Corps of Engineers, Engineering and Construction Community of 
Practice, Washington, DC at 202-761-0673; Mr. Chandra S. Pathak, 
Headquarters, U.S. Army Corps of Engineers, Engineering and 
Construction Community of Practice, Washington, DC at 202-761-4668; or 
Mr. Kenton Spading, U.S. Army Corps of Engineers, St. Paul District, at 
651-290-5623.

SUPPLEMENTARY INFORMATION:

Executive Summary

    The purpose of this action is to amend the current rule regarding 
minimum discharges and minimum operating limits of the reservoirs at 
the headwaters of the Mississippi River to ensure that the regulations 
do not conflict with the current operating plan for those reservoirs.
    The Corps' authority to amend the minimum flow values and minimum 
operating limits for the reservoirs of the headwaters of the 
Mississippi River is Section 7 of the Rivers and Harbors Act of 1917 
(40 Stat. 266; 33 U.S.C. 1) and Section 216 of the Flood Control Act of 
1970 (84 Stat. 1830; 33 U.S.C. 549a).

Background

    The Rivers and Harbors Acts of June 14, 1880, and August 2, 1882, 
authorized the construction of dams at each of the six Mississippi 
River Headwaters lakes for the purpose of augmenting Mississippi River 
flow for navigation. The lakes affected by these acts are 
Winnibigoshish, Leech, Pokegama, Sandy, Cross (Pine River), and Gull. 
Following authorization of the reservoirs, the Secretary of War 
prescribed regulations governing operation of the reservoirs on 
February 11, 1931, which were codified at 33 CFR 207.340. The current 
regulations list minimum discharges for each reservoir at 33 CFR 
207.340(d)(2). The current regulations also list minimum operating 
limits, or the lowest level at which the Corps may operate each 
reservoir, at 33 CFR 207.340(d)(7).
    The Corps' procedure adopting and publishing regulations related to 
reservoirs has changed since the aforementioned regulations were 
originally codified in 1931. The present-day practice is to include 
minimum flow values, operating limits and other related information in 
Water Control Manuals that are adopted following an extensive public 
and environmental review process, as outlined in Engineer Regulation 
(ER) 1110-2-240. Moreover, the operating limits in the Water Control 
Manuals prescribe not only the minimum level at which a reservoir may 
operate but also the absolute upper limit on reservoir operations, 
effectively providing a band within which the Corps may operate a 
reservoir.
    As a precursor to updating the Water Control Manuals for the 
Mississippi River Headwaters reservoirs in 2009, we completed a study 
known as the Mississippi River Headwaters Reservoir Operating Plan 
Evaluation (ROPE). The primary purpose of the ROPE was to evaluate 
alternative operating plans for the Headwaters reservoirs in an attempt 
to improve the operation of the system while balancing tribal trust 
obligations, flood risk reduction, environmental concerns, water 
quality, water supply, recreation, navigation, hydropower, and other 
public interests.
    On January 19, 2010, after thoroughly assessing potential 
environmental impacts and involving the public in the process, the 
District Engineer for the St. Paul District signed a Record of Decision 
approving the ROPE's recommended operating plan for the Headwaters 
reservoirs. The ROPE's recommended plan adopts minimum discharges that 
were scientifically developed using a habitat in-stream flow analysis 
(Tenant 1976), as described in the ROPE. The minimum discharges in the 
ROPE's recommended plan differ from the minimum discharges listed in 33 
CFR 207.340 as it is currently written. We are in the process of 
updating the Water Control Manuals for the Headwaters reservoirs to 
implement the recommendations from the 2009 ROPE. Once the Water 
Control Manuals are revised, the minimum discharge values in the 
revised Water Control Manuals will also be in conflict with 33 CFR 
207.340 if the regulation is not amended.
    Table No. 1 illustrates the differences between the current 
regulations and the 2009 ROPE study minimum flows.

                      Table 1--Mississippi River Headwater Reservoir System Operating Limits and CFR Versus ROPE Minimum Discharges
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                    Winni-bigoshish          Leech             Pokegama              Sandy         Cross L. Pine R.          Gull
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Operating Limit...........  1294.94-1303.14...  1292.70-1297.94...  1270.42-1278.42...  1214.31-1221.31...  1225.32-1235.30...  1192.75-1194.75
Minimum Flow: 33 CFR 207.340....  150 cfs...........  70 cfs............  200 cfs...........  80 cfs............  90 cfs............  30 cfs
Minimum Flow: 2009 ROPE.........  >=1294.94.........  >=1292.70.........  >=1273.17.........  >=1214.31.........  >=1225.32.........  >=1192.75
                                  100 cfs...........  120 cfs...........  200 cfs...........  20 cfs............  30 cfs............  20 cfs
                                  <1294.94..........  <1292.70..........  <1273.17..........  <1214.31..........  <1225.32..........  <1192.75
                                  50 cfs............  60 cfs............  Sum of Flow From    10 cfs............  15 cfs............  10 cfs
                                                                           Winni-bigoshish
                                                                           plus Leech.
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    We are proposing to amend the regulations to delete all references 
to minimum flows to eliminate any conflict between the regulations and 
the Water Control Manuals that guide operations at the Mississippi 
River Headwaters reservoirs. We further propose to remove the minimum 
operating limits from the regulations. Any future changes to the 
minimum flows or the operating limits of the Headwaters reservoirs will 
be handled through revisions to the Water Control Manuals, which will 
be accomplished in accordance with the guidance provided in ER 1110-2-
240 after public input and any necessary environmental reviews. The 
proposed change to the rule will eliminate the necessity of amending 
the Code of Federal

[[Page 42032]]

Regulations each time a Water Control Manual is updated.

Administrative Requirements

Plain Language

    In compliance with the principles in the President's Memorandum of 
June 1, 1998, (63 FR 31855) regarding plain language, this preamble is 
written using plain language. The use of ``we'' in this notice refers 
to the Corps. We have also used the active voice, short sentences, and 
common everyday terms except for necessary technical terms.

Paperwork Reduction Act

    This proposed action will not impose any new information collection 
burden under the provisions of the Paperwork Production Act (44 U.S.C. 
3501 et seq.). The proposed modification would eliminate minimum flow 
values and operating limits from the rule. Since the proposed rule does 
not involve any additional collection of information from the public, 
this action is not subject to the Paperwork Reduction Act.

Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Corps must determine whether the regulatory action is ``significant'' 
and therefore subject to review by OMB and the requirements of the 
Executive Order. The Executive Order defines ``significant regulatory 
action'' as one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, we have determined 
that the proposed rule is not a ``significant regulatory action'' 
because it does not meet any of these four criteria. The proposed rule 
modifies the regulations to be consistent with an approved, updated 
operating plan for the Mississippi River Headwaters reservoirs.

Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires the Corps to develop an accountable process to 
ensure ``meaningful and timely input by State and local officials in 
the development of regulatory policies that have Federalism 
implications.'' The phrase ``policies that have Federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.''
    The proposed rule does not have Federalism implications. We do not 
believe that amending the regulation to eliminate references to minimum 
flow values and operating limits for the Mississippi River Headwaters 
reservoirs will have substantial direct effects on the States, on the 
relationship between the Federal government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. The proposed rule does not impose new substantive 
requirements. In addition, the proposed changes will not impose any 
additional substantive obligations on State or local governments. 
Therefore, Executive Order 13132 does not apply to this proposed rule.

Regulatory Flexibility Act, as Amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq.

    The Regulatory Flexibility Act generally requires an agency to 
prepare a regulatory flexibility analysis of any rule subject to 
notice-and-comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations and small governmental jurisdictions.
    For purposes of assessing the impacts of this proposed rule on 
small entities, a small entity is defined as: (1) A small business 
based on Small Business Administration size standards; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district, or special district with a population of less than 
50,000; or (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of the proposed rule on 
small entities, we believe that this action will not have a significant 
economic impact on a substantial number of small entities. The proposed 
rule is consistent with current agency practice, does not impose new 
substantive requirements, and therefore would not have a significant 
economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under Section 202 of the UMRA, the 
agencies generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal 
mandates'' that may result in expenditures to State, local, and Tribal 
governments, in the aggregate, or to the private sector, of $100 
million or more in any one year. Before promulgating a rule for which a 
written statement is needed, Section 205 of the UMRA generally requires 
the agencies to identify and consider a reasonable number of regulatory 
alternatives and adopt the least costly, most cost-effective, or least 
burdensome alternative that achieves the objectives of the rule. The 
provisions of section 205 do not apply when they are inconsistent with 
applicable law. Moreover, section 205 allows an agency to adopt an 
alternative other than the least costly, most cost-effective, or least 
burdensome alternative if the agency publishes with the final rule an 
explanation why that alternative was not adopted. Before an agency 
establishes any regulatory requirements that may significantly or 
uniquely affect small governments, including Tribal governments, it 
must have developed, under Section 203 of the UMRA, a small government 
agency plan. The plan must provide for notifying potentially affected 
small governments, enabling officials of affected small governments to 
have meaningful and timely input in the development of regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    We have determined that the proposed rule does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and Tribal governments, in the aggregate, or the 
private sector in any one year. The proposed rule is

[[Page 42033]]

consistent with current agency practice, does not impose new 
substantive requirements and therefore does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and Tribal governments, in the aggregate, or the private 
sector in any one year. Therefore, the proposed rule is not subject to 
the requirements of Sections 202 and 205 of the UMRA. For the same 
reasons, we have determined that the proposed rule contains no 
regulatory requirements that might significantly or uniquely affect 
small governments. Therefore, the proposed rule is not subject to the 
requirements of Section 203 of UMRA.

Executive Order 13045

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies 
to any rule that: (1) is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that we have reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, we must evaluate the environmental health or 
safety effects of the proposed rule on children, and explain why the 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives.
    The proposed rule is not subject to this Executive Order because it 
is not economically significant as defined in Executive Order 12866. In 
addition, it does not concern an environmental or safety risk that we 
have reason to believe may have a disproportionate effect on children.

Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires agencies to develop an accountable process to ensure 
``meaningful and timely input by tribal officials in the development of 
regulatory policies that have tribal implications.'' The phrase 
``policies that have tribal implications'' is defined in the Executive 
Order to include regulations that have ``substantial direct effects on 
one or more Indian tribes, on the relationship between the Federal 
government and the Indian tribes, or on the distribution of power and 
responsibilities between the Federal government and Indian tribes.''
    The proposed rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and the Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
government and Indian tribes. It is generally consistent with current 
agency practice and does not impose new substantive requirements. 
Therefore, Executive Order 13175 does not apply to this proposed rule.

Environmental Documentation

    The purpose of this proposed rulemaking is to make the Code of 
Federal Regulations consistent with the current operating plan for the 
Mississippi River Headwaters Reservoirs. This action is solely 
administrative in nature. There is no intended change in the use or 
operation of the reservoirs as a result of this action. The substantive 
change in reservoir operations has already occurred as a consequence of 
the adoption of an updated operating plan, as approved in the Record of 
Decision for Mississippi River Headwaters Reservoir Operating Plan 
Evaluation dated January 19, 2010. The potential environmental impacts 
of the updated operating plan were thoroughly assessed in the Final 
Integrated Reservoir Operating Plan Evaluation and Environmental Impact 
Statement dated September 2009. Because the present action is merely 
administrative and an environmental analysis was completed at the time 
the substantive changes to the operating plan were adopted, no 
additional environmental documentation will be required at this time.

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. We will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States. A 
major rule cannot take effect until 60 days after it is published in 
the Federal Register. The proposed rule is not a ``major rule'' as 
defined by 5 U.S.C. 804(2).

Executive Order 12898

    Executive Order 12898 requires that, to the greatest extent 
practicable and permitted by law, each Federal agency must make 
achieving environmental justice part of its mission. Executive Order 
12898 provides that each Federal agency conduct its programs, policies, 
and activities that substantially affect human health or the 
environment in a manner that ensures that such programs, policies, and 
activities do not have the effect of excluding persons (including 
populations) from participation in, denying persons (including 
populations) the benefits of, or subjecting persons (including 
populations) to discrimination under such programs, policies, and 
activities because of their race, color, or national origin.
    The proposed rule is not expected to negatively impact any 
community, and therefore is not expected to cause any 
disproportionately high and adverse impacts to minority or low-income 
communities.

Executive Order 13211

    The proposed rule is not a ``significant energy action'' as defined 
in Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001) because it is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy. The 
proposed rule is consistent with current agency practice, does not 
impose new substantive requirements and therefore will not have a 
significant adverse effect on the supply, distribution, or use of 
energy.

List of Subjects in 33 CFR Part 207

    Navigation (water), Penalties, Reporting and recordkeeping 
requirements, Waterways.

    Dated: July 3, 2013.

Approved By:

James R. Hannon,
Chief of Operations.

    For the reasons stated in the preamble, the Corps proposes to amend 
33 CFR part 207 as follows:

PART 207--NAVIGATION REGULATIONS

0
1. The authority citation for part 207 continues to read as follows:

    Authority:  40 Stat. 266 (33 U.S.C. 1).

0
2. Revise Sec.  207.340 to read as follows:


Sec.  207.340  Reservoirs at headwaters of the Mississippi River; use 
and administration.

    (a) Description. These reservoirs include Winnibigoshish, Leech 
Lake, Pokegama, Sandy Lake, Pine River and Gull Lake.
    (b) Penalties. The River and Harbor Act approved August 11, 1888 
(25 Stat.

[[Page 42034]]

419, 33 U.S.C. 601) includes the following provisions as to the 
administration of the headwater reservoirs:
    And it shall be the duty of the Secretary of War to prescribe such 
rules and regulations in respect to the use and administration of said 
reservoirs as, in his judgment, the public interest and necessity may 
require; which rules and regulations shall be posted in some 
conspicuous place or places for the information of the public. And any 
person knowingly and willfully violating such rules and regulations 
shall be liable to a fine not exceeding five hundred dollars, or 
imprisonment not exceeding six months, the same to be enforced by 
prosecution in any district court of the United States within whose 
territorial jurisdiction such offense may have been committed.
    (c) Previous regulations now revoked. In accordance with the above 
act, the Secretary of War prescribed regulations for the use and 
administration of the reservoirs at the headwaters of the Mississippi 
River under date of February 11, 1931, which together with all 
subsequent amendments are hereby revoked and the following substituted 
therefor.
    (d) Authority of officer in charge of the reservoirs. The 
accumulation of water in, and discharge of water from the reservoirs, 
including that from one reservoir to another, shall be under the 
direction of the U.S. District Engineer, St. Paul, Minnesota, and of 
his authorized agents subject to the following restrictions and 
considerations:
    (1) Notwithstanding any other provision of this section, the 
discharge from any reservoir may be varied at any time as required to 
permit inspection of, or repairs to, the dams, dikes or their 
appurtenances, or to prevent damage to lands or structures above or 
below the dams.
    (2) During the season of navigation on the upper Mississippi River, 
the volume of water discharged from the reservoirs shall be so 
regulated by the officer in charge as to maintain as nearly as 
practicable, until navigation closes, a sufficient stage of water in 
the navigable reaches of the upper Mississippi and in those of any 
tributary thereto that may be navigated and on which a reservoir is 
located.
    (e) Passage of logs and other floating bodies. Logs and other 
floating bodies may be sluiced or locked through the dams, but prior 
authority for the sluicing of logs must be obtained from the District 
Engineer when this operation necessitates a material change in 
discharge.
    (f) Obstructions to flow of water. No person shall place floating 
bodies in a stream or pond above or below a reservoir dam when, in the 
opinion of the officer in charge, such act would prevent the necessary 
flow of water to or from such dam, or in any way injure the dam and its 
appurtenances, its dikes and embankments; and should floating bodies 
lying above or below a dam constitute at any time an obstruction or 
menace as beforesaid, the owners of said floating bodies will be 
required to remove them immediately.
    (g) Trespass. No one shall trespass on any reservoir dam, dike, 
embankment or upon any property pertaining thereto.

[FR Doc. 2013-16877 Filed 7-12-13; 8:45 am]
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