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Corps of Engineers, Dept. of the Army, Dod § 208.11

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Corps of Engineers, Dept. of the Army, Dod § 208.11 Corps of Engineers, Dept. of the Army, DoD § 208.11 § 208.11 Regulations for use of storage the interest of flood control and navi- allocated for flood control or navi- gation as follows: gation and/or project operation at reservoirs subject to prescription of The operation and maintenance of the rules and regulations by the Sec- dams shall be subject to reasonable rules and retary of the Army in the interest of regulations of the Secretary of the Army in flood control and navigation. the interest of flood control and navigation. NOTE: This Regulation will also be applica- (a) Purpose. This regulation pre- ble to dam and reservoir projects operated scribes the responsibilities and general under provisions of future legislative acts procedures for regulating reservoir wherein the Secretary of the Army is di- projects capable of regulation for flood rected to prescribe rules and regulations in the interest of flood control and navigation. control or navigation and the use of The Chief of Engineers, U.S. Army Corps of storage allocated for such purposes and Engineers, is designated the duly authorized provided on the basis of flood control representative of the Secretary of the Army and navigation, except projects owned to exercise the authority set out in the Con- and operated by the Corps of Engi- gressional Acts. This Regulation will nor- neers; the International Boundary and mally be implemented by letters of under- Water Commission, United States and standing between the Corps of Engineers and project owner and will incorporate the provi- Mexico; and those under the jurisdic- sions of such letters of understanding prior tion of the International Joint Com- to the time construction renders the project mission, United States, and Canada, capable of significant impoundment of and the Columbia River Treaty. The in- water. A water control agreement signed by tent of this regulation is to establish both parties will follow when deliberate im- an understanding between project own- poundment first begins or at such time as ers, operating agencies, and the Corps the responsibilities of any Corps-owned of Engineers. projects may be transferred to another enti- ty. Promulgation of this Regulation for a (b) Responsibilities. The basic respon- given project will occur at such time as the sibilities of the Corps of Engineers re- name of the project appears in the FEDERAL garding project operation are set out in REGISTER in accordance with the require- the cited authority and described in ments of paragraph 6k. When agreement on a the following paragraphs: water control plan cannot be reached be- (1) Section 7 of the Flood Control Act tween the Corps and the project owner after coordination with all interested parties, the of 1944 (58 Stat. 890, 33 U.S.C. 709) di- project name will be entered in the FEDERAL rects the Secretary of the Army to pre- REGISTER and the Corps of Engineers plan scribe regulations for flood control and will be the official water control plan until navigation in the following manner: such time as differences can be resolved. Hereafter, it shall be the duty of the Sec- (3) Federal Energy Regulatory Com- retary of War to prescribe regulations for the mission (FERC), formerly Federal use of storage allocated for flood control or Power Commission (FPC), Licenses. navigation at all reservoirs constructed (i) Responsibilities of the Secretary wholly or in part with Federal funds pro- of the Army and/or the Chief of Engi- vided on the basis of such purposes, and the neers in FERC licensing actions are set operation of any such project shall be in ac- cordance with such regulations: Provided, forth in reference 3c above and perti- That this section shall not apply to the Ten- nent sections are cited herein. The nessee Valley Authority, except that in case Commission may further stipulate as a of danger from floods on the lower Ohio and licensing condition, that a licensee Mississippi Rivers the Tennessee Valley Au- enter into an agreement with the De- thority is directed to regulate the release of partment of the Army providing for op- water from the Tennessee River into the eration of the project during flood Ohio River in accordance with such instruc- times, in accordance with rules and tions as may be issued by the War Depart- regulations prescribed by the Secretary ment. of the Army. (2) Section 9 of Public Law 436–83d (A) Section 4(e) of the Federal Power Congress (68 Stat. 303) provides for the Act requires approval by the Chief of development of the Coosa River, Ala- Engineers and the Secretary of the bama and Georgia, and directs the Sec- Army of plans of dams or other struc- retary of the Army to prescribe rules tures affecting the navigable capacity and regulations for project operation in of any navigable waters of the United 111 VerDate Sep<11>2014 17:09 Aug 21, 2019 Jkt 247139 PO 00000 Frm 00121 Fmt 8010 Sfmt 8010 Q:\33\33V3.TXT PC31 kpayne on VMOFRWIN702 with $$_JOB § 208.11 33 CFR Ch. II (7–1–19 Edition) States, prior to issuance of a license by (ii) Federal Power Commission Order the Commission as follows: No. 540 issued October 31, 1975, and pub- 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 * * * for the purpose of constructing, operating General Policy and Interpretations pre- and maintaining dams, water conduits, res- scribed Standardized Conditions ervoirs, powerhouses, transmission lines, or (Forms) for Inclusion in Preliminary other project works necessary or convenient Permits and Licenses Issued Under for the development and improvement of part I of the Federal Power Act. As an navigation and for the development, trans- example, Article 12 of Standard Form mission, and utilization of power across, L–3, titled: ‘‘Terms and Conditions of along, from or in any of the streams or other License for Constructed Major Projects bodies of water over which Congress has ju- risdiction * * * Provided further, That no li- Affecting Navigable Waters of the cense affecting the navigable capacity of any United States,’’ sets forth the Commis- navigable waters of the United States shall sion’s interpretation of appropriate be issued until the plans of the dam or other sections of the Act, which deal with structures affecting navigation have been ap- navigation aspects, and attendant re- proved by the Chief of Engineers and the sponsibilities of the Secretary of the Secretary of the Army. Army in licensing actions as follows: (B) Sections 10(a) and 10(c) of the The United States specifically retains and Federal Power Act specify conditions safeguards the right to use water in such of project licenses including the fol- amount, to be determined by the Secretary lowing: of the Army, as may be necessary for the (1) Section 10(a). ‘‘That the project purposes of navigation on the navigable wa- terway affected; and the operations of the adopted * * * shall be such as in the Licensee, so far as they affect the use, stor- judgment of the Commission will be age and discharge from storage of waters af- best adapted to a comprehensive plan fected by the license, shall at all times be for improving or developing a water- controlled by such reasonable rules and regu- way or waterways for the use or benefit lations as the Secretary of the Army may of interstate or foreign commerce, for prescribe in the interest of navigation, and the improvement and utilization of wa- as the Commission may prescribe for the terpower development, and for other protection of life, health, and property, * * * and the Licensee shall release water from beneficial public uses * * *.’’ the project reservoir at such rate * * * as the (2) Section 10(c). ‘‘That the licensee Secretary of the Army may prescribe in the shall * * * so maintain and operate interest of navigation, or as the Commission said works as not to impair navigation, may prescribe for the other purposes herein- and shall conform to such rules and before mentioned. regulations as the Commission may (c) Scope and terminology. This regula- from time to time prescribe for the tion applies to Federal authorized flood protection of life, health, and property control and/or navigation storage * * *.’’ projects, and to non-Federal projects (C) Section 18 of the Federal Power which require the Secretary of the Act directs the operation of any navi- Army to prescribe regulations as a con- gation facilities built under the provi- dition of the license, permit or legisla- sion of that Act, be controlled by rules tion, during the planning, design and and regulations prescribed by the Sec- construction phases, and throughout retary of the Army as follows: the life of the project. In compliance The operation of any navigation facilities with the authority cited above, this which may be constructed as part of or in regulation defines certain activities connection with any dam or diversion struc- and responsibilities concerning water ture built under the provisions of this Act, control management throughout the whether at the expense of a licensee here- Nation in the interest of flood control under or of the United States, shall at all and navigation. In carrying out the times be controlled by such reasonable rules conditions of this regulation, the and regulations in the interest of navigation; including the control of the pool caused by owner and/or operating agency will such dam or diversion structure as may be comply with applicable provisions of made from time to time by the Secretary of Pub. L. 85–624, the Fish and Wildlife the Army, * * *. Coordination Act of 1958, and Pub.
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