Corps of Engineers, Dept. of the Army, DoD § 208.11
of ice or debris. Large objects which be- storage allocated for such purposes and come lodged against the bank shall be provided on the basis of flood control removed. The improved channel or and navigation, except projects owned floodway shall be thoroughly inspected and operated by the Corps of Engi- immediately following each major high neers; the International Boundary and water period. As soon as practicable Water Commission, United States and thereafter, all snags and other debris Mexico; and those under the jurisdic- shall be removed and all damage to tion of the International Joint Com- banks, riprap, deflection dikes and mission, United States, and Canada, walls, drainage outlets, or other flood and the Columbia River Treaty. The in- control structures repaired. tent of this regulation is to establish (h) Miscellaneous facilities—(1) Mainte- an understanding between project own- nance. Miscellaneous structures and fa- ers, operating agencies, and the Corps cilities constructed as a part of the of Engineers. protective works and other structures (b) Responsibilities. The basic respon- and facilities which function as a part sibilities of the Corps of Engineers re- of, or affect the efficient functioning of garding project operation are set out in the protective works, shall be periodi- the cited authority and described in cally inspected by the Superintendent the following paragraphs: and appropriate maintenance measures (1) Section 7 of the Flood Control Act taken. Damaged or unserviceable parts of 1944 (58 Stat. 890, 33 U.S.C. 709) di- shall be repaired or replaced without rects the Secretary of the Army to pre- delay. Areas used for ponding in con- scribe regulations for flood control and nection with pumping plants or for navigation in the following manner: temporary storage of interior run-off Hereafter, it shall be the duty of the Sec- during flood periods shall not be al- retary of War to prescribe regulations for the lowed to become filled with silt, debris, use of storage allocated for flood control or or dumped material. The Super- navigation at all reservoirs constructed intendent shall take proper steps to wholly or in part with Federal funds pro- prevent restriction of bridge openings vided on the basis of such purposes, and the operation of any such project shall be in ac- and, where practicable, shall provide cordance with such regulations: Provided, for temporary raising during floods of That this section shall not apply to the Ten- bridges which restrict channel capac- nessee Valley Authority, except that in case ities during high flows. of danger from floods on the lower Ohio and (2) Operation. Miscellaneous facilities Mississippi Rivers the Tennessee Valley Au- shall be operated to prevent or reduce thority is directed to regulate the release of flooding during periods of high water. water from the Tennessee River into the Those facilities constructed as a part Ohio River in accordance with such instruc- tions as may be issued by the War Depart- of the protective works shall not be ment. used for purposes other than flood pro- tection without approval of the Dis- (2) Section 9 of Public Law 436–83d trict Engineer unless designed therefor. Congress (68 Stat. 303) provides for the development of the Coosa River, Ala- (Sec. 3, 49 Stat. 1571, as amended; 33 U.S.C. bama and Georgia, and directs the Sec- 701c) retary of the Army to prescribe rules [9 FR 9999, Aug. 17, 1944; 9 FR 10203, Aug. 22, and regulations for project operation in 1944] the interest of flood control and navi- gation as follows: § 208.11 Regulations for use of storage allocated for flood control or navi- The operation and maintenance of the gation and/or project operation at dams shall be subject to reasonable rules and reservoirs subject to prescription of regulations of the Secretary of the Army in rules and regulations by the Sec- the interest of flood control and navigation. retary of the Army in the interest of NOTE: This Regulation will also be applica- flood control and navigation. ble to dam and reservoir projects operated (a) Purpose. This regulation pre- under provisions of future legislative acts wherein the Secretary of the Army is di- scribes the responsibilities and general rected to prescribe rules and regulations in procedures for regulating reservoir the interest of flood control and navigation. projects capable of regulation for flood The Chief of Engineers, U.S. Army Corps of control or navigation and the use of Engineers, is designated the duly authorized
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representative of the Secretary of the Army navigable waters of the United States shall to exercise the authority set out in the Con- be issued until the plans of the dam or other gressional Acts. This Regulation will nor- structures affecting navigation have been ap- mally be implemented by letters of under- proved by the Chief of Engineers and the standing between the Corps of Engineers and Secretary of the Army. project owner and will incorporate the provi- sions of such letters of understanding prior (B) Sections 10(a) and 10(c) of the to the time construction renders the project Federal Power Act specify conditions capable of significant impoundment of of project licenses including the fol- water. A water control agreement signed by lowing: both parties will follow when deliberate im- (1) Section 10(a). ‘‘That the project poundment first begins or at such time as adopted * * * shall be such as in the the responsibilities of any Corps-owned judgment of the Commission will be projects may be transferred to another enti- best adapted to a comprehensive plan ty. Promulgation of this Regulation for a given project will occur at such time as the for improving or developing a water- name of the project appears in the FEDERAL way or waterways for the use or benefit REGISTER in accordance with the require- of interstate or foreign commerce, for ments of paragraph 6k. When agreement on a the improvement and utilization of wa- water control plan cannot be reached be- terpower development, and for other tween the Corps and the project owner after beneficial public uses * * *.’’ coordination with all interested parties, the (2) Section 10(c). ‘‘That the licensee project name will be entered in the FEDERAL shall * * * so maintain and operate REGISTER and the Corps of Engineers plan said works as not to impair navigation, will be the official water control plan until such time as differences can be resolved. and shall conform to such rules and (3) Federal Energy Regulatory Com- regulations as the Commission may mission (FERC), formerly Federal from time to time prescribe for the Power Commission (FPC), Licenses. protection of life, health, and property (i) Responsibilities of the Secretary * * *.’’ of the Army and/or the Chief of Engi- (C) Section 18 of the Federal Power neers in FERC licensing actions are set Act directs the operation of any navi- forth in reference 3c above and perti- gation facilities built under the provi- nent sections are cited herein. The sion of that Act, be controlled by rules Commission may further stipulate as a and regulations prescribed by the Sec- licensing condition, that a licensee retary of the Army as follows: enter into an agreement with the De- The operation of any navigation facilities partment of the Army providing for op- which may be constructed as part of or in eration of the project during flood connection with any dam or diversion struc- times, in accordance with rules and ture built under the provisions of this Act, whether at the expense of a licensee here- regulations prescribed by the Secretary under or of the United States, shall at all of the Army. times be controlled by such reasonable rules (A) Section 4(e) of the Federal Power and regulations in the interest of navigation; Act requires approval by the Chief of including the control of the pool caused by Engineers and the Secretary of the such dam or diversion structure as may be Army of plans of dams or other struc- made from time to time by the Secretary of tures affecting the navigable capacity the Army, * * *. of any navigable waters of the United (ii) Federal Power Commission Order States, prior to issuance of a license by No. 540 issued October 31, 1975, and pub- the Commission as follows: lished November 7, 1975 (40 FR 51998), The Commission is hereby authorized and amending § 2.9 of the Commission’s empowered to issue licenses to citizens * * * General Policy and Interpretations pre- for the purpose of constructing, operating scribed Standardized Conditions and maintaining dams, water conduits, res- (Forms) for Inclusion in Preliminary ervoirs, powerhouses, transmission lines, or Permits and Licenses Issued Under other project works necessary or convenient part I of the Federal Power Act. As an for the development and improvement of example, Article 12 of Standard Form navigation and for the development, trans- L–3, titled: ‘‘Terms and Conditions of mission, and utilization of power across, along, from or in any of the streams or other License for Constructed Major Projects bodies of water over which Congress has ju- Affecting Navigable Waters of the risdiction * * * Provided further, That no li- United States,’’ sets forth the Commis- cense affecting the navigable capacity of any sion’s interpretation of appropriate
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sections of the Act, which deal with (1) The terms reservoir and project as navigation aspects, and attendant re- used herein include all water resource sponsibilities of the Secretary of the impoundment projects constructed or Army in licensing actions as follows: modified, including natural lakes, that are subject to this regulation. The United States specifically retains and safeguards the right to use water in such (2) The term project owner refers to amount, to be determined by the Secretary the entity responsible for maintenance, of the Army, as may be necessary for the physical operation, and safety of the purposes of navigation on the navigable wa- project, and for carrying out the water terway affected; and the operations of the control plan in the interest of flood Licensee, so far as they affect the use, stor- control and/or navigation as prescribed age and discharge from storage of waters af- by the Corps of Engineers. Special ar- fected by the license, shall at all times be controlled by such reasonable rules and regu- rangements may be made by the lations as the Secretary of the Army may project owner for ‘‘operating agencies’’ prescribe in the interest of navigation, and to perform these tasks. as the Commission may prescribe for the (3) The term letter of understanding as protection of life, health, and property, * ** used herein includes statements which and the Licensee shall release water from consummate this regulation for any the project reservoir at such rate * * * as the given project and define the general Secretary of the Army may prescribe in the interest of navigation, or as the Commission provisions or conditions of the local may prescribe for the other purposes herein- sponsor, or owner, cooperation agreed before mentioned. to in the authorizing legislative docu- ment, and the requirements for compli- (c) Scope and terminology. This regula- ance with section 7 of the 1944 Flood tion applies to Federal authorized flood Control Act, the Federal Power Act or control and/or navigation storage other special congressional act. This projects, and to non-Federal projects information will be specified in the which require the Secretary of the water control plan and manual. The Army to prescribe regulations as a con- letter of understanding will be signed dition of the license, permit or legisla- by a duly authorized representative of tion, during the planning, design and the Chief of Engineers and the project construction phases, and throughout owner. A ‘‘field working agreement’’ the life of the project. In compliance may be substituted for a letter of un- with the authority cited above, this derstanding, provided that the speci- regulation defines certain activities fied minimum requirements of the lat- and responsibilities concerning water ter, as stated above, are met. control management throughout the Nation in the interest of flood control (4) The term water control agreement and navigation. In carrying out the refers to a compliation of water control conditions of this regulation, the criteria, guidelines, diagrams, release owner and/or operating agency will schedules, rule curves and specifica- comply with applicable provisions of tions that basically govern the use of Pub. L. 85–624, the Fish and Wildlife reservoir storage space allocated for Coordination Act of 1958, and Pub. L. flood control or navigation and/or re- 92–500, the Federal Water Pollution lease functions of a water control Control Act Amendments of 1972. This project for these purposes. In general, regulation does not apply to local flood they indicate controlling or limiting protection works governed by § 208.10, rates of discharge and storage space re- or to navigation facilities and associ- quired for flood control and/or naviga- ated structures which are otherwise tion, based on the runoff potential dur- covered by part 207 (Navigation Regu- ing various seasons of the year. lations) of title 33 of the code. Small (5) For the purpose of this regulation, reservoirs, containing less than 12,500 the term water control plan is limited to acre-feet of flood control or navigation the plan of regulation for a water re- storage, may be excluded from this reg- sources project in the interest of flood ulation and covered under § 208.10, un- control and/or navigation. The water less specifically required by law or con- control plan must conform with pro- ditions of the license or permit. posed allocations of storage capacity
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and downstream conditions or other re- storage space on a day-to-day (real- quirements to meet all functional ob- time) basis without request of the proj- jectives of the particular project, act- ect owner. Appropriate consideration ing separately or in combination with will be given for other authorized other projects in a system. project functions. Upon refusal of the (6) The term real-time denotes the project owner to comply with regula- processing of current information or tions prescribed by the Corps of Engi- data in a sufficiently timely manner to neers, a letter will be sent to the influence a physicial response in the project owner by the Chief of Engineers system being monitored and con- or his duly authorized representative trolled. As used herein the term con- describing the reason for the regula- notes * * * the analyses for and execu- tions prescribed, events that have tran- tion of water control decisions for both spired, and notification that the minor and major flood events and for project owner is in violation of the navigation, based on prevailing Code of Federal Regulations. Should an hydrometeorological and other condi- impasse arise, in that the project tions and constraints, to achieve effi- owner or the designated operating enti- cient management of water resource ty persists in noncompliance with reg- systems. ulations prescribed by the Corps of En- (d) Procedures—(1) Conditions during gineers, measures may be taken to as- project formulation. During the planning sure compliance. and design phases, the project owner (3) Corps of Engineers implementation should consult with the Corps of Engi- of real-time water control decisions. The neers regarding the quantity and value Corps of Engineers may prescribe the of space to reserve in the reservoir for continuing regulation of flood control flood control and/or navigation pur- storage space for any project subject to poses, and for utilization of the space, this regulation on a day-to-day (real- and other requirements of the license, time) basis. When this is the case, con- permit or conditions of the law. Rel- sultation and assistance from the evant matters that bear upon flood project owner to the extent possible control and navigation accomplish- will be expected. Special requests by ment include: Runoff potential, res- the project owner, or appropriate oper- ervoir discharge capability, down- ating entity, are preferred before the stream channel characteristics, Corps of Engineers offers advice on hydrometeorological data collection, real-time regulation during surcharge flood hazard, flood damage characteris- storage utilization. tics, real estate acquisition for flowage (4) Water control plan and manual. requirements (fee and easement), and Prior to project completion, water con- resources required to carry out the trol managers from the Corps of Engi- water control plan. Advice may also be neers will visit the project and the area sought on determination of and regula- served by the project to become famil- tion for the probable maximum or iar with the water control facilities, other design flood under consideration and to insure sound formulation of the by the project owner to establish the water control plan. The formal plan of quantity of surcharge storage space, regulation for flood control and/or and freeboard elevation of top of dam navigation, referred to herein as the or embankment for safety of the water control plan, will be developed project. and documented in a water control (2) Corps of Engineers involvement. If manual prepared by the Corps of Engi- the project owner is responsible for neers. Development of the manual will real-time implemenetation of the be coordinated with the project owner water control plan, consultation and to obtain the necessary pertinent infor- assistance will be provided by the mation, and to insure compatibility Corps of Engineers when appropriate with other project purposes and with and to the extent possible. During any surcharge regulation. Major topics in emergency that affects flood control the manual will include: Authorization and/or navigation, the Corps of Engi- and description of the project, neers may temporarily prescribe regu- hydrometeorology, data collection and lation of flood control or navigation communication networks, hydrologic
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forecasting, the water control plan, might otherwise result in unsatisfac- and water resource management func- tory project performance in the inter- tions, including responsibilities and co- est of flood contol and/or navigation. ordination for water control decision- Supplementation of the agreement will making. Special instructions to the be necessary for each project where the dam tender or reservoir manager on Corps of Engineers exercises the discre- data collection, reporting to higher tionary authority to prescribe the Federal authority, and on procedures flood control regulation on a day-to- to be followed in the event of a commu- day (real-time) basis. The agreement nication outage under emergency con- will include delegation of the responsi- ditions, will be prepared as an exhibit bility. The document should also cite, in the manual. Other exhibits will in- as appropriate, section 7 of the 1944 clude copies of this regulation, letters Flood Control Act, the Federal Power of understanding consummating this Act and/or other congressional legisla- regulation, and the water control tion authorizing construction an/or di- agreements. After approval by the recting operation of the project. Chief of Engineers or his duly author- (iii) All flood control regulations ized representative, the manual will be published in the FEDERAL REGISTER furnished the project owner. under this section (part 208) of the code (5) Water control agreement. (i) A prior to the date of this publication water control diagram (graphical) will which are listed in § 208.11(e) are hereby be prepared by the Corps of Engineers superseded. for each project having variable space (iv) Nothing in this regulation pro- reservation for flood control and/or hibits the promulgation of specific reg- navigation during the year; e.g., vari- ulations for a project in compliance able seasonal storage, joint-use space, or other rule curve designation. Res- with the authorizing acts, when agree- ervoir inflow parameters will be in- ment on acceptable regulations cannot cluded on the diagrams when appro- be reached between the Corps of Engi- priate. Concise notes will be included neers and the owner. on the diagrams prescribing the use of (6) Hydrometeorological instrumenta- storage space in terms of release sched- tion. The project owner will provide in- ules, runoff, nondamaging or other con- strumentation in the vicinity of the trolling flow rates downstream of the damsite and will provide communica- damsite, and other major factors as ap- tion equipment necessary to record and propriate. A water control release transmit hydrometeorological and res- schedule will be prepared in tabular ervoir data to all appropriate Federal form for projects that do not have vari- authorities on a real-time basis unless able space reservation for flood control there are extenuating circumstances or and/or navigation. The water control are otherwise provided for as a condi- diagram or release schedule will be tion of the license or permit. For those signed by a duly authorized representa- projects where the owner retains re- tive of the Chief of Engineers, the sponsibility for real-time implementa- project owner, and the designated oper- tion of the water control plan, the ating agency, and will be used as the owner will also provide or arrange for basis for carrying out this regulation. the measurement and reporting of Each diagram or schedule will contain hydrometeorological parameters re- a reference to this regulation. quired within and adjacent to the wa- (ii) When deemed necessary by the tershed and downstream of the Corps of Engineers, information given damsite, sufficient to regulate the on the water control diagram or re- project for flood control and/or naviga- lease schedule will be supplemented by tion in an efficient manner. When data appropriate text to assure mutual un- collection stations outside the imme- derstanding on certain details or other diate vicinity of the damsite are re- important aspects of the water control quired, and funds for installation, ob- plan not covered in this regulation, on servation, and maintenance are not the water control diagram or in the re- available from other sources, the Corps lease schedule. This material will in- of Engineers may agree to share the clude clarification of any aspects that costs for such stations with the project
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owner. Availability of funds and ur- upon request at the appropriate office gency of data needs are factors which of the Corps of Engineers, project will be considered in reaching decisions owner or designated operating agency. on cost sharing. (9) Other generalized requirements for (7) Project safety. The project owner is flood control and navigation. (i) Storage responsible for the safety of the dam space in the reservoirs allocated for and appurtenant facilities and for regu- flood control and navigation purposes lation of the project during surcharge shall be kept available for those pur- storage utilization. Emphasis upon the poses in accordance with the water safety of the dam is especially impor- control agreement, and the plan of reg- tant in the event surcharge storage is ulation in the water control manual. utilized, which results when the total (ii) Any water impounded in the flood storage space reserved for flood control control space defined by the water con- is exceeded. Any assistance provided by trol agreement shall be evacuated as the Corps of Engineers concerning sur- rapidly as can be safely accomplished charge regulation is to be utilized at without causing downstream flows to the discretion of the project owner, and exceed the controlling rates; i.e., re- does not relieve the owner of the re- leases from reservoirs shall be re- sponsibility for safety of the project. stricted insofar as practicable to quan- (8) Notification of the general public. tities which, in conjunction with un- The Corps of Engineers and other inter- controlled runoff downstream of the ested Federal and State agencies, and dam, will not cause water levels to ex- the project owner will jointly sponsor ceed the controlling stages currently in public involvement activities, as ap- force. Although conflicts may arise propriate, to fully apprise the general with other purposes, such as hydro- public of the water control plan. Public power, the plan or regulation may re- meetings or other effective means of quire releases to be completely cur- notification and involvement will be tailed in the interest of flood control or held, with the initial meeting being safety of the project. conducted as early as practicable but (iii) Nothing in the plan of regulation not later than the time the project for flood control shall be construed to first becomes operational. Notice of require or allow dangerously rapid the initial public meeting shall be pub- changes in magnitudes of releases. Re- lished once a week for 3 consecutive leases will be made in a manner con- weeks in one or more newspapers of sistent with requirements for pro- general circulation published in each tecting the dam and reservoir from county covered by the water control major damage during passage of the plan. Such notice shall also be used maximum design flood for the project. when appropriate to inform the public (iv) The project owner shall monitor of modifications in the water control current reservoir and hydro- meteoro- plan. If no newspaper is published in a logical conditions in and adjacent to county, the notice shall be published in the watershed and downstream of the one or more newspapers of general cir- damsite, as necessary. This and any culation within that county. For the other pertinent information shall be purposes of this section a newspaper is reported to the Corps of Engineers on a one qualified to publish public notices timely basis, in accordance with stand- under applicable State law. Notice ing instructions to the damtender or shall be given in the event significant other means requested by the Corps of problems are anticipated or experi- Engineers. enced that will prevent carrying out (v) In all cases where the project the approved water control plan or in owner retains responsibility for real- the event that an extreme water condi- time implementation of the water con- tion is expected that could produce se- trol plan, he shall make current deter- vere damage to property or loss of life. minations of: Reservoir inflow, flood The means for conveying this informa- control storage utilized, and scheduled tion shall be commensurate with the releases. He shall also determine stor- urgency of the situation. The water age space and releases required to com- control manual will be made available ply with the water control plan pre- for examination by the general public scribed by the Corps of Engineers. The
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owner shall report this information on mentation or transfer of storage space a timely basis as requested by the to a neighboring project. Revision of Corps of Engineers. the water control plan, water control (vi) The water control plan is subject agreement, water control diagram, or to temporary modification by the release schedule requires approval of Corps of Engineers if found necessary the Chief of Engineers or his duly au- in time of emergency. Requests for and thorized representative. Each such re- action on such modifications may be vision shall be effective upon the date made by the fastest means of commu- specified in the approval. The original nication available. The action taken (signed document) water control agree- shall be confirmed in writing the same ment shall be kept on file in the re- day to the project owner and shall in- spective Office the Division Engineer, clude justification for the action. Corps of Engineers, Department of the (vii) The project owner may tempo- rarily deviate from the water control Army, located at division offices plan in the event an immediate short- throughout the continental USA. Cop- term departure is deemed necessary for ies of these agreements may be ob- emergency reasons to protect the safe- tained from the office of the project ty of the dam, or to avoid other serious owner, or from the office of the appro- hazards. Such actions shall be imme- priate Division Engineer, Corps of En- diately reported by the fastest means gineers. of communication available. Actions (11) Federal Register. The following in- shall be confirmed in writing the same formation for each project subject to day to the Corps of Engineers and shall section 7 of the 1944 Flood Control Act include justification for the action. and other applicable congressional acts Continuation of the deviation will re- shall be published in the FEDERAL REG- quire the express approval of the Chief ISTER prior to the time the projects be- of Engineers, or his duly authorized comes operational and prior to any sig- representative. nificant impoundment before project (viii) Advance approval of the Chief completion or * * * at such time as the of Engineers, or his duly authorized responsibility for physical operation representative, is required prior to any and maintenance of the Corps of Engi- deviation from the plan of regulation neers owned projects is transferred to prescribed or approved by the Corps of another entity: Engineers in the interest of flood con- (i) Reservoir, dam, and lake names, trol and/or navigation, except in emer- gency situations provided for in para- (ii) Stream, county, and State cor- graph (d)(9)(vii) of this section. When responding to the damsite location, conditions appear to warrant a pro- (iii) The maximum current storage longed deviation from the approved space in acre-feet to be reserved exclu- plan, the project owner and the Corps sively for flood control and/or naviga- of Engineers will jointly investigate tion purposes, or any multiple-use and evaluate the proposed deviation to space (intermingled) when flood con- insure that the overall integrity of the trol or navigation is one of the pur- plan would not be unduly com- poses, with corresponding elevations in promised. Approval of prolonged devi- feet above mean sea level, and area in ations will not be granted unless such acres, at the upper and lower limits of investigations and evaluations have said space, been conducted to the extent deemed (iv) The name of the project owner, necessary by the Chief of Engineers, or and his designated representatives, to fully (v) Congressional legislation author- substantiate the deviation. izing the project for Federal participa- (10) Revisions. The water control plan tion. and all associated documents will be revised by the Corps of Engineers as (e) List of projects. The following ta- necessary, to reflect changed condi- bles, ‘‘Pertinent Project Data—Section tions that come to bear upon flood con- 208.11 Regulation,’’ show the pertinent trol and navigation, e.g., reallocation data for projects which are subject to of reservoir storage space due to sedi- this regulation.
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