Section 26a of the TVA Act
Subpart A: Procedures for Approval of Construction
1304.1 Scope and intent
1304.3 Delegation of authority
1304.4 Application review and approval process
1304.5 Conduct of hearings
1304.7 Conditions of approvals
1304.9 Initiation of construction
1304.10 Change in ownership of approved facilities or activities
1304.11 Little Tennessee River; date of formal submission
§ 1304.1 Scope and intent
The Tennessee Valley Authority Act of 1933 among other things confers on TVA broad authority related to the unified conservation and development of the Tennessee River Valley and surrounding area and directs that property in TVA’s custody be used to promote the Act’s purposes. In particular, section 26a of the Act requires that TVA’s approval be obtained prior to the construction, operation, or maintenance of any dam, appurtenant works, or other obstruction affecting navigation, flood control, or public lands or reservations along or in the Tennessee River or any of its tributaries. By way of example only, such obstructions may include boat docks, piers, boathouses, buoys, floats, boat launching ramps, fills, water intakes, devices for discharging effluent, bridges, aerial cables, culverts, pipelines, fish attractors, shoreline stabilization projects, channel excavations, and nonnavigable houseboats as defined in §1304.101.
Any person considering constructing, operating, or maintaining any such obstruction on a stream in the Tennessee River Watershed should carefully review the regulations in this part and the 26a Applicant’s Package before doing so. The regulations also apply to certain activities on TVA-owned land alongside TVA reservoirs and to land subject to TVA flowage easements. TVA uses and permits use of the lands and land rights in its custody alongside and subjacent to TVA reservoirs and exercises its land rights to carry out the purposes and policies of the Act.
In addition, the National Environmental Policy Act of 1969, as amended, (NEPA), 42 U.S.C. 4321 et seq., and the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. 1251 et seq., (FWPCA), have declared it to be congressional policy that agencies should administer their statutory authorities so as to restore, preserve, and enhance the quality of the environment and should cooperate in the control of pollution. It is the intent of the regulations in this part 1304 to carry out the purposes of the Act and other statutes relating to these purposes, and this part shall be interpreted and applied to that end.
§ 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 rule, 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.
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 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 the Tennessee Valley Authority, at one of the Watershed Team locations.
(c) Submittal of section 26a Application. Applicants must submit certain required information depending upon whether a proposed facility is a minor or major facility. Examples of the two categories are provided in paragraphs (c)(1) and (2) of this section. Most residential related facilities are minor facilities. Commercial or community facilities generally are major facilities. TVA shall determine whether a proposed facility is minor or major.
An application shall not be complete until payment of the appropriate fee as determined in accordance with 18 CFR part 1310, and disclosed to the applicant in the materials provided with the application package or by such other means of disclosure as TVA shall from time to time adopt. For purposes of the information required to be submitted under this section and the determination of fees, a request for a variance to the size limitations for a residential-related facility (other than a waiver request under §1304.212 or §1304.300(a)) shall be regarded as an application for a major facility.
In addition to the information required below, TVA may require the applicant to provide such other information as TVA deems necessary for adequate review of a particular application.
(1) Information required for review of minor facility. By way of example only, minor facilities may include: boat docks, piers, rafts, boathouses, fences, steps, and gazebos. One copy of the application shall be prepared and submitted in accordance with the instructions included in the section 26a Applicant’s Package. The application shall include:
(i) Completed application form. One (1) copy of the application shall be prepared and submitted. Application forms are available from TVA at the locations identified at the beginning of this section. The application shall include a project description which indicates what is to be built, removed, or modified, and the sequence of the work.
(ii) Project, plan, or drawing. The project plan/drawing shall:
(A) Be prepared on paper suitable for reproduction (8 1/2 by 11 inches);
(B) Identify the kind of structure, purpose/intended use;
(C) Show principal dimensions, size, and location in relation to shoreline;
(D) Show the elevation of the structure above the full summer pool; and
(E) Indicate the river or reservoir name, river mile, locator landmarks, and direction of water flow if known.
(iii) A site photograph. The photograph shall be at least 3 by 5 inches in size and show the location of the proposed structure or alteration and the adjacent shoreline area.
(iv) Location map. The location map shall clearly show the location of the proposed facility and the extent of any site disturbance for the proposed project. An 8 1/2 by 11-inch copy of one of the following is ideal: a TVA land map, a subdivision map, or a portion of a United States Geological Survey topographic map. The subdivision name and lot number and the map number or name shall be included, if available.
(v) Environmental consultations and permits. To the fullest extent possible the applicant shall obtain or apply for other required environmental permits and approvals before or at the same time as applying for section 26a approvals. Consultations under the National Historic Preservation Act of 1966 and the Endangered Species Act of 1973 shall take place, and permits from the U. S. Army Corps of Engineers and state agencies for water or air regulation shall be obtained or applied for at the same time as or before application for section 26a approval. The applicant shall provide TVA with copies of any such permits or approvals that are issued.
(2) Information required for a major facility. One (1) copy of the application shall be prepared and submitted according to instructions included in the section 26a Applicant’s Package. By way of example only, major projects and facilities may include: marinas, community docks, barge terminals, utility crossings, bridges, culverts, roads, wastewater discharges, water intakes, dredging, and placement of fill. The application shall include:
(i) Completed application form. Application forms are available from TVA at the locations identified at the beginning of this section. The application shall include a narrative project description which indicates what is to be built, removed, or modified, and the sequence of the work.
(ii) Project plan or drawing. Adequate project plans or drawings shall accompany the application. They shall
(A) Be prepared on paper suitable for reproduction (no larger than 11 by 17 inches) or contained on a 3 1/2-inch floppy disc in “dxf” format.
(B) Contain the date; applicant name; stream; river or reservoir name; river mile; locator landmarks; and direction of water flow, if known;
(C) Identify the kind of structure, purpose/intended use;
(D) Include a plan and profile view of the structure;
(E) Show principal dimensions, size, and location in relation to shoreline;
(F) Show the elevations of the structure above full summer pool if located on a TVA reservoir or above the normal high water elevation if on a free-flowing stream or river; and
(G) Show the north arrow.
(iii) Location map. The location map must clearly indicate the exact location and extent of site disturbance for the proposed project. An 8 1/2 by 11-inch copy of the appropriate portion of a United States Geological Survey topographic map is recommended. The map number or name shall be included. In addition, recent photos of the location are helpful for TVA’s review and may be included.
(iv) Other information where applicable. The location of any material laydown or assembly areas, staging areas, equipment storage areas, new access roads, and road/access closure required by the project or needed for construction; the location of borrow or spoil areas on or off TVA land; the extent of soil and vegetative disturbance; and information on any special reservoir operations needed for the project, such as drawdown or water discharge restrictions.
(v) Site plans. Some projects, particularly larger ones, may require a separate site plan which details existing and proposed changes to surface topography and elevations (cut and fill, clearing, etc.), location of all proposed facilities, and erosion control plans.
(vi) Environmental consultations and permits. To the fullest extent possible the applicant shall obtain or apply for other required environmental permits and approvals before or at the same time as applying for section 26a approvals. Consultations under the National Historic Preservation Act of 1966 and the Endangered Species Act of 1973 shall take place, and permits from the U. S. Army Corps of Engineers and state agencies for water or air regulation shall be obtained or applied for at the same time as or before application for section 26a approval. The applicant shall provide TVA with copies of any such permits or approvals that are issued.
(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 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 there is reasonable assurance that the applicant’s proposed activity will be conducted in a manner which will not violate 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.
§ 1304.3 Delegation of authority
The power to approve or disapprove applications under this part is delegated to the Vice President, Natural Resources, or the designee thereof, subject to appeal to the Chief Executive Officer and discretionary review by a designated committee of the TVA Board, as provided in § 1304.6. The administration of applications is delegated to the Natural Resources staff or the group with functionally equivalent responsibilities.
(b) If a hearing is held for any of the reasons described in paragraph (c) of this section, any interested person may become a party of record by following the directions contained in the hearing notice.
(c) Hearings concerning approval of applications are conducted (in accordance with § 1304.5) when:
(1) TVA deems a hearing is necessary
or appropriate in determining any issue presented by the application;
(2) A hearing is required under any applicable law or regulation;
(3) A hearing is requested by the USACE pursuant to the TVA/Corps joint processing Memorandum of Understanding; or
(4) The TVA Investigating Officer directs that a hearing be held.
(d) Upon completion of the review of the application, including any hearing or hearings, the Vice President or the designee thereof shall issue an initial decision approving or disapproving the application. The basis for the decision shall be set forth in the decision.
(e) Promptly following the issuance of the decision, the Vice President or the designee thereof shall furnish a written copy of the decision to the applicant and to any parties of record. The initial decision shall become final unless an appeal is made pursuant to § 1304.6.
(a) If a hearing is to be held for any of the reasons described in § 1304.4(c), TVA shall give notice of the hearing to interested persons. Such notice may be given by publication in a daily newspaper of general circulation in the area of the proposed structure, personal written notice, posting on TVA’s Internet Web site, or by any other method reasonably calculated to come to the attention of interested persons. The notice shall provide to the extent feasible the place, date, and time of hearing; the particular issues to which the hearing will pertain; the manner of becoming a party of record; and any other pertinent information as appropriate. The applicant shall automatically be a party of record.
(b) Hearings may be conducted by any such person or persons as may be designated by the Vice President, the Vice President’s designee, or the Chief Executive Officer. Hearings are public and are conducted in an informal manner. Parties of record may be represented by counsel or other persons of their choosing. Technical rules of evidence are not observed although reasonable bounds are maintained as to relevancy, materiality, and competency. Evidence may be presented orally or by written statement and need not be under oath. Cross-examination by parties of witnesses or others providing statements or testifying at a hearing shall not be allowed. After the hearing has been completed, additional evidence will not be received unless it presents new and material matter that in the judgment of the person or persons conducting the hearing could not be presented at the hearing. The Vice President may arrange a joint hearing with another federal agency where the subject of an application will require the approval of and necessitate a hearing by or before that other agency. In TVA’s discretion, the format of any such joint hearing may be that used by the other agency.
(a) Decisions approving or disapproving an application may be appealed as provided in this section. Decisions by the Vice President’s designee may be appealed to the Vice President and decisions by the Vice President may be appealed to the Chief Executive Officer, with the possibility of further discretionary review by a committee of the TVA Board.
(b) If a designee of the Vice President issues an initial decision disapproving an applicant, the applicant may obtain the Vice President’s review of that decision by mailing within thirty (30) days after receipt of the designee’s decision a written request to the Vice President, Natural Resources, Tennessee Valley Authority, 400 West Summit Hill Drive, Knoxville, Tennessee 37902. Otherwise, the initial decision of the Vice President’s designee becomes final.
(c) If the Vice President, either initially or as the result of an appeal, disapproves an application or approves it with terms and conditions deemed unacceptable by the applicant, the applicant may obtain the Chief Executive Officer’s review of that decision by mailing within thirty (30) days after receipt of the decision a written request to the Chief Executive Officer, Tennessee Valley Authority, 400 W. Summit Hill Drive, Knoxville, Tennessee 37902. Otherwise, the Vice President’s decision becomes final.
(d) The decision of the Chief Executive Officer shall become final unless a request for discretionary review by a committee of the Board (Committee) is justified by extraordinary circumstances and mailed within thirty (30) days after receipt of the decision to the attention of Board Services, Tennessee Valley Authority, 400 West Summit Hill Drive, Knoxville, Tennessee 37902. If within 60 days of such a request, one or more members of the Committee indicate that there are extraordinary circumstances warranting further review, the matter will be reviewed by the Committee. Otherwise, the Chief Executive Officer’s decision becomes final. The Committee will schedule a meeting not more often that twice a year as needed to hear discretionary appeals. The Committee decides what kind of process to use for these appeals. Deliberations and voting on the reviews will take place at these meetings.
(e) Any interested party who becomes a party of record at a hearing as set forth in § 1304.4(b) and who is aggrieved or adversely affected by any decision approving an application may obtain review by the Vice President or Chief Executive Officer, as appropriate, and may request discretionary review by the Committee, in the same manner as an applicant by adhering to the requirements of paragraphs (b), (c), and (d) of this section.
(f) All requests for review shall fully explain the reasons the applicant or other aggrieved party of record contends that the decision below is in error, and shall include a signed certification that the request for review was mailed to each party of record at the same time that it was mailed to TVA. TVA shall maintain lists of parties of record and make those available upon request for this purpose.
(g) The applicant and any party of record requesting review by the Vice President or Chief Executive Officer may submit additional written material in support of their positions within thirty (30) days after mailing the request for review or during such additional period as the Vice President or Chief Executive Officer may allow.
(h) In considering an appeal, the Vice President or Chief Executive Officer may conduct or cause to be conducted such investigation of the application as he or she deems necessary or desirable, and may appoint an Investigating Officer. The Investigating Officer may be a TVA employee or a person under contract to TVA, and shall not have been directly and substantially involved in the decision being appealed. The Investigating Officer may be the hearing officer for any hearing held during the appeal process. The Vice President or Chief Executive Officer shall render a decision approving or disapproving the application based on a review of the record and the information developed during any investigation and/or submitted by the applicant and any parties of record.
No applicant or party of record shall contact the Chief Executive Officer, Committee members, or any other TVA Board member during the appeal process, except as specified in correspondence from the Chief Executive Officer or from the Committee Secretary. The appeal process runs from the date of an appeal to the Chief Executive Officer until a final resolution of the matter.
A written copy of the decision by the Vice President or the Chief Executive Officer shall be furnished to the applicant and to all parties of record promptly following determination of the matter.
In the event the Committee grants a request for discretionary review, notice of that decision and information about the review shall be provided to the person(s) requesting review and to other parties of record in accordance with the methods set forth in § 1304.5(a). Written notice of the Committee’s final determination of the appeal shall be provided to the applicant and to all parties of record in accordance with the methods set forth in § 1304.5(a).
§ 1304.7 Conditions of approvals
Approvals of applications shall contain such conditions as are required by law and may contain such other general and special conditions as TVA deems necessary or desirable.
§ 1304.8 Denials
TVA may, at its sole discretion, deny any application to construct, operate, conduct, or maintain any obstruction, structure, facility, or activity that in TVA’s judgment would be contrary to the unified development and regulation of the Tennessee River system, would adversely affect navigation, flood control, public lands or reservations, the environment, or sensitive resources (including, without limitation, federally listed threatened or endangered species, high priority state-listed species, wetlands with high function and value, archaeological or historical sites of national significance, and other sites or locations identified in TVA Reservoir Land Management Plans as requiring protection of the environment), or would be inconsistent with TVA’s Shoreline Management Policy. In lieu of denial, TVA may require mitigation measures where, in TVA’s sole judgment, such measures would adequately protect against adverse effects.
§ 1304.10 Change in ownership of approved facilities or activities
(a) When there is a change in ownership of the land on which a permitted facility or activity is located (or ownership of the land which made the applicant eligible for consideration to receive a permit when the facility or activity is on TVA land), the new owner shall notify TVA within sixty (60) days. Upon application to TVA by the new owner, the new owner may continue to use existing facilities or carry out permitted activities pending TVA’s decision on reissuance of the permit. TVA shall reissue the permit upon determining that the facilities are in good repair and are consistent with the standards in effect at the time the permit was first issued.
(b) Subsequent owners are not required to modify existing facilities constructed and maintained in accordance with the standards in effect at the time the permit was first issued provided they:
(1) Maintain such facilities in good repair; and
(2) Obtain TVA approval for any repairs that would alter the size of the facility or for any new construction.
§ 1304.11 Little Tennessee River; date of formal submission
As regards structures on the Little Tennessee River, applications are deemed by TVA to be formally submitted within the meaning of section 26a of the Act, on that date upon which applicant has complied in good faith with all applicable provisions of §1304.2.