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[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
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                                    Winni-bigoshish          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 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
                                  pre>
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