[Federal Register Volume 78, Number 249 (Friday, December 27, 2013)]
[Rules and Regulations]
[Pages 78717-78720]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-31078]
[[Page 78717]]
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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: Final rule.
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SUMMARY: The U.S. Army Corps of Engineers is amending 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: Effective Date: January 27, 2014.
FOR FURTHER INFORMATION CONTACT: Headquarters, Engineering and
Construction Community of Practice, Washington, DC at 202-761-4922, 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
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Winnibigoshish Leech Pokegama Sandy Cross L. Pine R. Gull
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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 Sec. 150 cfs........... 70 cfs............ 200 cfs........... 80 cfs............ 90 cfs............ 30 cfs.
207.340.
Minimum Flow: 2009 ROPE......... >= 1294.94 100 cfs >= 1292.70 120 cfs >= 1273.17 200 cfs >= 1214.31 20 cfs >= 1225.32 30 cfs >= 1192.75 20 cfs
< 1294.94 50 cfs. < 1292.70 60 cfs. < 1273.17 Sum of < 1214.31 10 cfs. < 1225.32 15 cfs. < 1192.75 10 cfs
Flow From Winni-
bigoshish plus
Leech.
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The Mississippi River Headwaters proposed rule change was published
for review and comment in the Federal Register on July 15, 2013 (78 FR
42030). The regulations.gov docket number was COE-2013-0008. No
comments were
[[Page 78718]]
received by the end of the review and comment period on September 13,
2013.
We are amending 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 are removing 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 change to the rule
will eliminate the necessity of amending the Code of Federal
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 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 modification would eliminate minimum flow values and
operating limits from the rule. Since the 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 rule is not a ``significant regulatory action'' because it
does not meet any of these four criteria. The 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 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 rule does not impose new substantive requirements. In
addition, the changes will not impose any additional substantive
obligations on State or local governments. Therefore, Executive Order
13132 does not apply to this 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 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 rule on small
entities, we believe that this action will not have a significant
economic impact on a substantial number of small entities. The 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
[[Page 78719]]
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 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 rule is 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 rule
is not subject to the requirements of Sections 202 and 205 of the UMRA.
For the same reasons, we have determined that the rule contains no
regulatory requirements that might significantly or uniquely affect
small governments. Therefore, the 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 rule on children, and explain why the regulation
is preferable to other potentially effective and reasonably feasible
alternatives.
The 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 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 rule.
Environmental Documentation
The purpose of this rule 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 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 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 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: December 20, 2013.
James R. Hannon,
Chief, Operations and Regulatory.
For the reasons stated in the preamble, the Corps amends 33 CFR
part 207 as follows:
PART 207--NAVIGATION REGULATIONS
0
1. The authority citation for part 207 continues to read as follows:
[[Page 78720]]
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. 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. 2013-31078 Filed 12-26-13; 8:45 am]
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