| The
Central Nebraska Public Power and Irrigation District
Federal Energy
Regulatory Commission Project No. 1417
AMENDMENT APPLICATION
FOR THE
DECEMBER 2002 LAND AND SHORELINE MANAGEMENT PLAN
REGARDING LAND USE CLASSIFICATIONS
AT PLUM CREEK CANYON RESERVOIR
INTRODUCTION
The Central Nebraska Public Power and Irrigation District (“Central”)
operates the hydropower generating facilities associated with Central's
Kingsley Dam Project (“Project”) subject to the Federal
Power Act and associated regulations, and pursuant to the express
terms and conditions of Central’s Project No. 1417 license
issued by the Federal Energy Regulatory Commission (“FERC”)
on July 29, 1998. Central is obligated to comply with the terms
and conditions of its FERC license. Those license conditions establish
limitations and criteria and require specific actions and approvals
that directly affect Central’s administration of the lands
within the FERC Project Boundary, which can be roughly described
as a line surrounding all of the Project reservoirs, canal, dams,
and other critical Project equipment and facilities.
Central’s December 2002 Land
and Shoreline Management Plan (“LSMP”) was developed in accordance with it’s
FERC license article 421. Central developed the LSMP in consultation
with the U.S. Fish and Wildlife Service (“USFWS”),
the Nebraska Game and Parks Commission (“NGPC”), local
governments and the general public. FERC approved the LSMP on March
4, 2003.
LSMP Section 7.B.1. Amendments
to this Plan – Changes in
the Use of Adjoining Lands provides a process for changing land
use classifications of the LSMP based upon a determination by Central
that such changes are warranted. Based on that process, Central
is recommending changes in land use classifications for certain
areas at Plum Creek Canyon Reservoir (“Plum Creek”).
Accordingly, after consultation with USFWS, NGPC, Dawson County,
Gosper County, adjoining landowners, and the public; Central has
determined the appropriate LSMP land use reclassifications for
certain Plum Creek areas as specified below in this Amendment
Application for the December 2002 Land and Shoreline Management
Plan Regarding Land Use Classifications at Plum Creek Canyon Reservoir (“Amendment
Application”).
INITIAL REVIEW OF POTENTIAL CHANGES
Since the creation and implementation of the LSMP, and during
Central’s required review of its FERC Project boundary, Central
determined that it would be appropriate to conduct a review of
land use classifications and consider possible changes at Plum
Creek. Central decided to conduct a review of Plum Creek land use
classifications primarily due to: (1) identification of some errors
in the original classification; (2) ongoing development at a pre-existing
subdivision; (3) relocation of a county road to accommodate creation
of a new subdivision; and (4) rumors or anticipation that other
adjacent landowners may also be considering future land-development
activities.
On April 26, 2005, Central met with some NGPC staff in Lincoln,
Nebraska, to informally discuss ongoing residential development
pressures around Plum Creek. At that meeting, NGPC staff indicated
that some items to keep in mind, include: (1) concerns about high
boating densities on a relatively narrow reservoir; and (2) recognition
of the lease for the NGPC Wildlife Management Area in the south-end
of the reservoir.
Central sent an October 24, 2005 letter to owners of land adjacent
to Plum Creek inviting them to a November 3, 2005 meeting to discuss
land use classification issues. At that meeting, Central explained
the consequences of existing land use classifications on allowing
access to Project lands and waters, and discussed the potential
for reclassification of some lands. Central further indicated at
that meeting that Central would be making efforts to meet individually
with various landowners prior to making a determination of which
changes in land use classifications, if any, are warranted. From
November 2005 through July 2006, Central met with several adjacent
landowners to discuss their intentions or desires regarding development,
access, and other issues. Central determined that changes in land
use classification in three “areas” are warranted at
this time, and sent a July 7, 2006 letter to adjacent landowners
informing them of Central’s initial determination. While
some other landowners have also indicated a general hope or intent
to develop their lands and have access to Project waters at some
point in the future, and in at least one case have specifically
requested reclassification of their lands, Central does not believe
that reclassification of those lands are warranted at this time,
given the uncertainty of future development plans and the potential
for such additional reclassifications to add delay to this effort
to reclassify lands where the need is more clearly warranted.
IDENTIFIED AREAS
Central has identified three “areas” at Plum Creek
where changes in land use classification are warranted at this
time. These areas are described below and shown in Figure 1 of
Appendix A.
Area 1 – Nelson and Peterson Lots
These are two long-existing residential lots located along the
northeast side of Plum Creek. The entirety of one of these lots
and a portion of the other are currently classified in the LSMP
as “Open Space/Pasture.” These lots are located alongside
several other similar lots already classified as “Residential.” These
are commonly referred to by Central staff as the “Nelson
and Peterson lots” because of the names of the current owners
of these lots. Area 1 is shown in Figure 1 of Appendix A.
Area 2 – Bellamy and Hutt Subdivisions
This area is located along a significant portion of the east-side
and a small portion of the south-end of Plum Creek. The majority
of this area was already subdivided at the time that the LSMP was
developed; however, only one house had been constructed at that
time. The lot containing the then-existing house is already classified
as “Residential,” with most of the remainder of the
area classified as “Open Space/Pasture” with a “Future
Development” overlay. There does exist at the east-end of
the area one additional potential lot that has not yet been subdivided
and is not indicated with a “Future Development” overlay.
The subdivisions in this area are commonly referred to by Central
staff as the “Bellamy Subdivision” and “Hutt
Subdivision” because of the names of current or past owners
of these lands. Area 2 is shown in Figure 1 of Appendix A.
Area 3 – Wightman Subdivision
This area is a strip of land along the southwest-side of Plum
Creek, adjacent to and southeast of the dam and public boat ramp.
At the time of the development of the LSMP, a county road ran through
this area skirting the southwest-side of the reservoir, with the
exception that there was a single, small cabin at the east-end
where the road began to turn away from the reservoir. Subsequent
to the development of the LSMP, a landowner and the county agreed
to an exchange of land and relocation of the county road, resulting
in a new subdivision of privately owned lots adjacent to the reservoir.
The current classification reflects the presence of the old road, “Farm
Use” to the outside of the old road, “Park/Recreation
Area – NGPC” along the shoreline, and a very small
portion classified as “Residential” where the single,
small cabin is located. This area is commonly referred to by Central
staff as the “Wightman Subdivision” because of the
name of the landowner at the time the land was subdivided. Area
3 is shown in Figure 1 of Appendix A.
CONSIDERATIONS
The following is a summary of important considerations for each
of the individual areas as well as for Plum Creek as a whole.
Area 1 – Nelson and Peterson Lots
The classification of these lots as “Open Space/Pasture” instead
of “Residential” at the time of the original classification
was a mistake. It is believed by Central staff that the misclassification
resulted from residential structures not having been noted at the
time the shoreline was visually inspected from a boat out on the
reservoir. Changing the classification for these lots from “Open
Space/Pasture” to “Residential” would correct
this error in the LSMP.
Because these lots have been used historically for residential
purposes, including shoreline access, there should be little or
no impact to scenic, recreational, or other environmental values
of the Project as a result of changing the classification to “Residential” and
providing the opportunity for personal access to the Project lands
and waters.
Area 2 – Bellamy and Hutt Subdivisions
Though not yet developed (with the exception of one lot), this
area was already subdivided with plans for development at the time
of the original LSMP classification. The potential for development
was reflected in the LSMP with a “Future Development” overlay
(with exceptions of the lot already classified as “Residential” and
the eastern-most lot classified as “Open Space/Pasture”)
and is referenced in LSMP Section 4.H.3. (page 41) of the LSMP.
The lots in the Bellamy Subdivision are relatively large as compared
to other lots at Plum Creek. The Bellamy Subdivision, including
all lots, comprises seven (7) lots adjacent to 9,950 feet of shoreline,
making an average of 1,421 feet per lot. The lots range in size
from 1.73 acres to 14.88 acres. The sizes and arrangements of the
Bellamy Subdivision lots are shown in Figure 2 of Appendix A.
The Hutt Subdivision consists of a single lot similar in size
to other lots at Plum Creek. The lot is adjacent to 497 feet of
shoreline and is 1.06 acres in size. The size and arrangement of
the Hutt Subdivision lot is shown in Figure 2 of Appendix A.
Central entered into a January 4, 2000 Agreement between Central
and the owner of the lot in the Hutt Subdivision addressing erosion
issues and granting to Central a perpetual right to erode. One
part of this agreement provides that the landowner may make application
and be permitted water access structures. However, under the requirements
of the LSMP, Central may not issue a permit to construct for Special
Water Access Facilities unless and until the adjacent lands are
classified in the LSMP as “Residential.”
Area 3 – Wightman Subdivision
Due to the presence of the prior road near the shoreline, development
adjacent to the reservoir in this area was not anticipated at the
time of the development of the LSMP.
The lots in the Wightman Subdivision (including the east lot containing
the one previously existing cabin) are similar in size to some
lots along the west-side of Plum Creek, relatively small as compared
to most other lots at Plum Creek. The Wightman Subdivision comprises
nine (9) lots adjacent to 1,195 feet of shoreline, making an average
of 133 feet per lot with most lots having a shoreline width of
exactly 100 feet. The lots range in size from 0.51 acres to 0.92
acres. The sizes and arrangements of the Wightman Subdivision lots
are shown in Figure 2 of Appendix A.
Some Project lands in the vicinity of the Wightman Subdivision
are leased to the Nebraska Game and Parks Commission for use as
a Wildlife Management Area. The Project lands along the shoreline
in front of the Wightman Subdivision for the most part have eroded
away over time and essentially no longer exist (except perhaps
to the extent that they may lie at the bottom of the reservoir).
The Wightman Subdivision is immediately adjacent to a NGPC public
boat ramp.
Central entered into a May 21, 2003 Agreement between Central
and the owner of the lots in the Wightman Subdivision addressing
erosion issues and granting to Central a perpetual right to erode.
One part of this agreement provides that the landowner may make
application and be permitted water access structures, while another
part requires compliance with the requirements of the LSMP and
Central’s Construction and Special Water
Access Permitting Procedures for Tenants, Subtenants, and Adjacent
Landowners (“Permitting
Procedures”). Under the requirements of the LSMP and Central’s
Permitting Procedures, Central may not issue a permit to construct
for Special Water Access Facilities unless and until the adjacent
lands are classified in the LSMP as “Residential.” Also,
within the agreement is a requirement that no building or structure
be constructed within 25 feet of the shoreline, whereas LSMP Section
5.D.1. (page 50) of the LSMP and Central’s Permitting Procedures
provide for a more restrictive setback of 50 feet if Special Water
Access Facilities are to be permitted. Central believes that there
is no conflict between the 25-foot setback in the agreement and
the 50-foot setback in the LSMP and Permitting Procedures because:
(1) the setbacks in the LSMP and Permitting Procedures are subject
to change, and could be equal to, less than, or greater than the
fixed requirement in the agreement at any particular point in time,
and the most restrictive requirement would always apply; and (2)
the requirement in the LSMP and Permitting Procedures is only applicable
if Special Water Access Facilities are to be permitted, so that
the lot owner could elect to forego any such Special Water Access
Facilities, making the 50-foot setback no longer applicable. Nonetheless,
Central understands that the two different setback numbers are
at least confusing and there are some that do not agree with Central’s
argument that they are not in conflict, so Central has offered
a modified agreement that includes a 50-foot setback in the agreement
for those that would want it. Also, in meetings prior to preparing
this Amendment Application, some landowners within the Wightman
Subdivision have expressed concern that a 50-foot setback against
all construction is not reasonable for the length of their lots,
and have asked that there be some allowance for such things as
patios, retaining walls, decks, etc. that would give them greater
access to and views of the reservoir.
Plum Creek Canyon Reservoir
As mentioned in LSMP Section 6.I.1. (page 88) of the LSMP, Plum
Creek “is a shallow, long and narrow lake, often frequented
by water skiers.” Due to the shape and size of the reservoir,
increased boating densities could be a navigational concern, particularly
where boating is at the higher speeds common to water skiing. Additional
private boat docks, shore stations, etc. allow for a greater number
of watercraft to access the lake at any one time, which could particularly
be an issue during high use periods such as summertime weekends
and holidays, when the amount of watercraft on the lake would have
otherwise been limited to the combined launching capacity of currently
existing private launching facilities and the launch rate capacity
of NGPC’s public boat ramp. If boating capacities become
too great, it is possible that it could lead to requiring new limits
on the use of already-existing private launching facilities, a
need to occasionally or permanently require the lake to be designated
for wakeless boating, or other consequences.
The shoreline around Plum Creek is a mix of developed and undeveloped
areas. Undeveloped areas provide for shorelines that generally
have greater aesthetic appeal and less environmental disturbance
than developed areas. Changing land use classifications that would
allow for additional portions of the shoreline to be developed
would reduce the amount of remaining undeveloped shoreline at the
reservoir. If all three areas under consideration are reclassified
as “Residential,” the result would be that approximately
38,800 feet of the 74,800 feet of total Plum Creek shoreline, or
approximately 52%, would be classified as “Residential.”
Even if it is assumed that boating densities and the amount of
undeveloped shoreline are such that reclassification of these three
areas need not be precluded, it is nonetheless reasonable to expect
that there could eventually be some limit as to how much more land
Central, resources agencies such as NGPC or USFWS, area landowners,
the general public, or FERC would allow to be similarly reclassified.
For each new piece of shoreline that gets reclassified as “Residential” and
is allowed to develop shoreline access, it logically reduces the
chances that remaining portions of the shoreline would be able
to do the same. That notwithstanding, there is no guarantee that:
(1) if these three areas are reclassified and allowed shoreline
access, other areas would not be reclassified and allowed access
in the future; or (2) if these three areas are not reclassified
and allowed shoreline access, other areas would be reclassified
and allowed access in the future.
In addition to the LSMP Section 7.B.1. (page 94)
process being used here, there exist other processes for amendments
and updates to the LSMP. License Article 421 requires updated reports
on the LSMP every five years, and LSMP Section 7.C.1. (page 97)
provides a process for a five-year review and update. The next
five-year update report is due at the end of 2007, and Central
has already initiated work on that update. It is anticipated that
this five-year review and update could result in changes to the
LSMP that impact Plum Creek land and shoreline. Central expects
to make reasonable efforts to incorporate, where possible, issues
addressed in this Section 7.B.1. process into the Section 7.C.1.
process.
RECOMMENDATION AND CONDITIONS
Central recommends that the LSMP land use classifications for
Areas 1, 2, and 3 be changed to “Residential” as shown
in the attached map (see Figure 3 in Appendix A), subject to the
following conditions intended to protect the scenic, recreational,
and environmental values of the Project.
Area 1 – Nelson and Peterson Lots
Uses of Project lands and waters would be subject to LSMP, Central’s
February 25, 2000 Cultural Resources Management
Plan (“CRMP”),
Permitting Procedures, lease and permit conditions, etc. similar
to other adjacent landowners. No other special conditions specific
to the change in land use classification would be required.
Area 2 – Bellamy and Hutt Subdivisions
Uses of Project lands and waters would be subject to LSMP, CRMP,
Permitting Procedures, lease and permit conditions, etc. similar
to other adjacent landowners. No construction (other than Special
Water Access Facilities (“SWAF”) or erosion control
work) or lawn establishment or maintenance would occur within 50
horizontal feet of the normal high water mark, as determined by
Central. SWAF would be limited to one dock serving no more than
two watercraft per lot, and any future subdivision of lots would
not result in an increase in the number of docks and watercraft
permitted.
Area 3 – Wightman Subdivision
Uses of Project lands and waters would be subject to LSMP, CRMP,
Permitting Procedures, lease and permit conditions, etc. similar
to other adjacent landowners. No buildings or attachments (such
as decks or porches) would be constructed within 50 horizontal
feet of the normal high water mark, as determined by Central. A
total of no more than 625 square feet of ground-level patio, excavation,
retaining walls, etc. located between 50 and 25 feet horizontal
from the normal high water mark, as determined by Central. SWAF
would be limited to one dock serving no more than two watercraft
per two lots, and any future subdivision of lots would not result
in an increase in the number of docks and watercraft permitted.
CONSULTATION
[Note: This section to be completed following required consultations
with resource agencies, local governments, landowners, and general
public.]
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