Tennessee Wildlife Federation CEO Mike Butler testified in Washington, D.C. before a House subcommittee in early October on the regulation of unregistered floating structures moored on public reservoirs managed by TVA. Of the 1,800 floating houses on those lakes, more than half are illegal, and it is unknown whether they were built to code or are handling sewer and electrical service in an appropriate manner. TVA is working to develop a policy to manage these structures moving forward. At the Congressional hearing, Butler was asked to represent the interests of Tennessee’s wildlife, habitat, and the people who use our public outdoor resources. Below is his written testimony submitted on September 23, 2016 to a subcommittee of the U.S. House Oversight and Government Reform Committee.
As a native Tennessean, I have spent nearly every year of my life recreating at public reservoirs managed by the Tennessee Valley Authority (TVA). I have done this across the entirety of the Tennessee Valley, and have personally witnessed the importance and value of the public resources under the management of TVA. As the Chief Executive Officer of the Tennessee Wildlife Federation, I have sat across the table from TVA to challenge them to protect our public resources, and on the same side of the table working with them to accomplish the same.
The issue of non-navigable floating houses on public reservoirs managed by the TVA has been ongoing for 45 years. The first policy establishing a prohibition against construction of new non-navigable floating houses was published in the Federal Register on October 22, 1971. In 1978, in order to bring TVA regulations into compliance with the then recently passed federal Clean Water Act, TVA restated this prohibition and addressed water quality issues related to these structures. And again in 2003, the policy was restated saying that, “No new non-navigable houseboats shall be moored, anchored, or installed in any TVA reservoir.”
What is remarkable is that of the 1,836 floating houses currently moored on public reservoirs managed by TVA, 930 of them were built and put on our public reservoirs after the second prohibition against these structures was put in place in 1978. The history of this issue is clearly an evolutionary one where some have chosen to ignore measures put in place to ensure that all citizens may enjoy these public reservoir resources, and that the health of those resources is maintained.
This new chapter builds upon previous ones, catalyzed apparently by discussions of potential plans to site entire subdivisions of floating homes on our public reservoirs. As a result, TVA did what few federal agencies do; they addressed a very difficult issue head on, considered all options, listened to stakeholders and made a decision that not only benefits the greatest public interest, but which also protects the public reservoir resources that are the backbone and attraction of a sustainable outdoor recreation economy. We support the TVA board-approved policy, which again restates the prohibition of new construction and location of non-navigable floating houses on our public reservoirs as well as sets a reasonable timetable for the removal of the existing structures after the passage of the next 30 years. Our reasons for supporting the TVA board policy are as follows.
Public resources only have value inasmuch as they are available to the public. What makes this possible is rational use provided by law. The reservoirs TVA manages under section 26a of the TVA Act are public reservoirs and, as such, we believe, should not be impeded or made de facto private property by allowing citizens to own floating houses on public waters. The mooring of floating houses on TVA public reservoirs excludes the public from being able to utilize that water in particular, and can negatively impact public uses of the public reservoirs as a whole. Additionally, they can pose a significant and real health and safety concern when not installed or maintained properly.
While some will argue against this new policy saying that these structures help the local economy, the realities of the negative economic impacts appears to be more dynamic. TVA has stated in its recent Environmental Impact Statement about this issue, these non-navigable floating houses may work to depress shoreline property values and negatively impact surface water recreational opportunities. Add to this that some individuals are utilizing floating houses as rental properties, and this further exacerbates the use of these public resources to benefit a few citizens.
Generally speaking, the Tennessee Wildlife Federation is not opposed to businesses operating on public waters or lands as long as (a) the activities or services being offered do not degrade the natural resources involved, and (b) that the activities or services being offered do not exclude other legitimate uses of these public resources. In our opinion, non-navigable floating houses fail both of these tests.
In addition to these points, waste issues are of concern. Who or what agency monitors compliance of these systems during installation, operation and failure when it occurs? Is this effectively an unfunded federal mandate that the Tennessee Department of Environment and Conservation must enforce? Will the owner(s) be held financially liable when waste systems fail? If so, who will enforce this and how will it be enforced, and how will the public be reimbursed for damage caused to the public waterways? To this point, TVA has recognized this concern stating in its recently completed Environmental Impact Statement (ES 5.2.1), “An increase in the number of FHs (floating homes) is expected to exacerbate water pollution problems, adding to the cumulative wastewater loading to surface waters.” The leaking of human and household waste into public reservoirs is a public health hazard—not only to aquatic life but to recreational users as well.
We also echo the safety concerns raised regarding electrical service to floating houses and the potential for electrocution.
While some may argue that wastewater and electrical safety can be adequately regulated, the sheer fact that hundreds of these structures were located on public reservoirs without any permitting or oversight, over a handful of decades, and in direct violation of federal rules, is a clear statement that many of the people building these structures are not concerned with following the rules and regulations that govern them.
Furthermore, the permanent mooring of non-navigable floating houses also has been identified as a safety issue by TVA due to concerns of increased navigation congestion. This relates directly to boaters and other watercraft operators’ use of the reservoirs under TVA’s care.
Lastly, and of great importance to millions of people who love to fish our public reservoirs, we believe the presence of floating houses deters use by anglers who seek to utilize the public waters and fisheries resources. In Tennessee, these anglers have a constitutional right to fish and allowing de facto private ownership of public reservoirs is in direct conflict with these activities, and arguably this right.
It is for these reasons that we support the recently approved TVA board of directors’ policy pertaining to non-navigable floating houses. It is our belief that no citizen should have a presumption of ownership of public waters, especially at the expense of other citizens who have an equal claim of use. There are good reasons as to why you or I cannot go into a national park and build a home, and there are equally good reasons that these structures were originally prohibited and regulated starting in 1971. We feel that the new policy is squarely aligned with TVA’s authority and duty under section 26a of the TVA Act.
Given this position, it is also important to point out that we believe that TVA bears some of the responsibility associated with the current predicament we find ourselves in. TVA must be consistent in the applications of its rules and regulations, resisting drift and reinterpretation when a new administration takes root. In this instance, we feel that TVA should find a way to make floating home owners who worked to comply with the rules and regulations, and had their homes permitted per those rules, be made whole by TVA. TVA made a commitment to those who played by the rules and it is only fair they take care of those who did.
It is important to note that this policy is also supported by TVA’s Regional Resources Stewardship Council, a federal advisory committee comprised of 19 members representing private and public citizens from each state of the Tennessee River Valley. Their charge is “to provide TVA advice on its stewardship activities and the priorities among competing objectives and values.” We find their support validating, given the diversity of interests that sit on the council and the fact that they support this policy.