124 FERC ¶ 62,020
UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Central Nebraska Public Power and Irrigation District Project No. 1417-198
ORDER MODIFYING AND APPROVING AMENDMENT OF LAND AND SHORELINE MANAGEMENT PLAN
(Issued July 09, 2008)
On February 12, 2007, Central Nebraska Public Power and Irrigation District (licensee) filed a request to amend its approved Land and Shoreline Management Plan (shoreline plan) for the Kingsley Dam Project (FERC No. 1417), located on the North Platte and Platte Rivers in Keith, Adams, Gosper, Phelps, Kearney, Lincoln, and Dawson Counties, Nebraska.(1) Specifically, the licensee requests authorization to change the classification of certain lands at Plum Creek Reservoir (reservoir) from their current designation of open-space to residential. Plum Creek Canyon Lake is located in Dawson and Gosper Counties, approximately 5 miles west of Johnson Lake.
(1) See Order Modifying and Approving Land and Shoreline Management Plan, 101 FERC ¶ 62,015, (issued October 7, 2002).
The Commission in 2002 approved the licensee’s shoreline plan for the project. The goals for managing project lands are contained in section 5.B of the shoreline plan, and provide that the licensee will: (1) ensure continued public access to project lands and waters; (2) provide a diversity of public recreational opportunities; (3) protect and manage the project’s environmental and recreation resources; (4) evaluate the impact of all land use proposals on surrounding project and non-project lands; (5) evaluate all proposed changes in land use and/or occupancy to assure such uses/occupancy are consistent with the purposes of protecting and enhancing the project’s scenic, recreational, and environmental values; and (6) provide economic development opportunities at the project and within the region.
To achieve the above goals, Section 5.C of the shoreline plan sets forth nine policies that address: (1) grandfathering existing facilities; (2) grandfathering existing leases; (3) granting new leases when such action provides a diversity of recreational opportunities and other benefits; (4) permitting new uses, structures, and facilities in compliance with the shoreline plan; (5) requiring building setbacks; (6) requiring measures to prevent shoreline erosion; (7) keeping project lands open for public recreational use to the extent possible; (8) retaining all rights necessary for the safe operation of the project; and (9) consider protecting wildlife and endangered species in all land use and recreation management decisions.
The plan provides for the goals and policies of the shoreline plan to be met by requiring a Permit to Construct, a Permit for Special Water Access Facilities (access facilities), or by Conveying Interests in project lands. A Permit to Construct is required for applicants who want shoreline facilities. A Permit for Special Water Access is required for applicants who want access across project lands and waters. A Conveyed Interest in project lands may be granted through leases, permits, easements, right-of-ways, or fee simple conveyances, subject to the restrictions in the license’s standard land use article.
The licensee’s February 12, 2007 filing proposes to change the classification of five parcels of project lands in three areas around the reservoir from open space to residential in order to correct errors made during the initial land classification to accurately reflect the use of land around the project reservoir, and to allow residents adjacent to the project boundary to apply for permits for access facilities. The parcels proposed for reclassification, located along the northern, southern, and eastern shorelines of the reservoir, are: (1) the Nelson and Peterson lots; (2) the Bellamy and Hutt subdivisions; and, (3) the Wightman subdivision. The names of each area reflect the names of the landowners at the time the properties were subdivided.
The following are detailed descriptions of the areas proposed for reclassification and the conditions recommended by the licensee to protect environmental resources at the project.
Nelson and Peterson Lots
The Nelson and Peterson lots are located adjacent to the northeast shoreline of the reservoir and are part of an existing cluster of residences. The licensee states that the Nelson and Peterson lots have historically been residential and used for shoreline access, and states that a mistake was made during the shoreline survey conducted for the shoreline plan, resulting in the adjacent shoreline classification of open space. Both of the lots are located amidst areas that are classified as residential, and this proposed change in the classification of the lots would reflect the actual use of the land, and would not affect any project resources given the historic use of the properties.
Bellamy and Hutt Subdivision
The Bellamy subdivision consists of 7 lots adjacent to 9,950 feet of shoreline along the east shoreline of the reservoir. At the time of the initial shoreline survey, only one lot in the Bellamy subdivision was developed, though the property was subdivided. As a result, the lot with existing development was classified as residential and the others were designated as open space with a “future development” overlay. The Hutt subdivision is comprised of a single lot adjacent to 497 feet of shoreline at the south end of the reservoir. The licensee entered into an agreement on January 4, 2000, with the landowner to address erosion issues at each location and was granted a perpetual right to erode.
The licensee intends to restrict shoreline activities at these locations by requiring owners who request access facilities to maintain a 50-foot wide buffer along the project shoreline. No lawn establishment or maintenance, or construction activities (except access facilities and erosion control measures) would be permitted within the buffer. Further, access facilities will be limited to a capacity of two watercrafts for each lot. These requirements are consistent with the approved shoreline plan.
The Wightman subdivision consists of 9 lots adjacent to 1,195 feet of shoreline on the south end of the reservoir near the project dam and adjacent to the Nebraska Game and Parks Commission (NGPC) public boat ramp. At the time of the initial land classification for the shoreline plan, a county road ran near the project boundary and only one cabin existed. The shoreline area was designated as farm use with the exception of the parcel occupied by the cabin. A subsequent land exchange between the landowner and the county resulted the relocation of the county road and the creation of a subdivision adjacent to the project boundary. The licensee entered into an agreement on May 21, 2003, with the landowner to address erosion issues at that location and was granted a perpetual right to erode.
The licensee proposes to minimize impacts to the project shoreline by requiring owners who request permits for access facilities to maintain a 50-foot wide buffer along the project shoreline. Further, due to the smaller lot sizes of properties in this area, the licensee proposes limiting the capacity of access facilities to one watercraft per lot. The licensee also proposes that a maximum of 625 square feet of ground-level patio, excavation, or retaining walls may be constructed between 25 and 50 horizontal feet from the shoreline.
CONSULTATION AND PUBLIC NOTICE
In developing the amendment application, the licensee consulted with the NGPC, U.S. Fish and Wildlife Service (FWS), the Nebraska State Historic Preservation Officer (SHPO), Dawson County, Gosper County, adjoining landowners, and the public. The Commission issued a public notice of the application on March 22, 2007, that set a deadline of April 23, 2007, for the filing of comments, motions to intervene, and protests. Responses were received from the SHPO, NGPC, FWS, U.S. Department of the Interior, Office of Environmental Policy and Compliance (Interior), Chuck Olsen, Kevin and Teresa Osborn (the Osborns), Uebele Farm, Ltd., Kermit and Glennis Lee (the Lees), Velma Romatzke, and Ephriam and Barbara Hixson (the Hixsons).
Interior had no comments on the application. The SHPO responded that there are no known historic resources present at the locations proposed for reclassification, and that a cultural resources survey was not needed. The SHPO concluded that the proposed land classification would have no effect on cultural or historic resources, and requests that all land disturbing activities cease and it be contacted immediately if previously unknown cultural or historic resources are discovered during any construction activities.
The Osborns, landowners adjacent to the reservoir, commented that they have concerns about the impacts of the proposed reclassification on public safety and property values. Specifically, they are concerned that construction of additional docks on the lake would increase congestion and reduce the boatable portion of the lake. They are further concerned that the sale of the properties has increased real estate taxes. The Osborns allege that they were previously informed that no new structures would be approved for construction, and feel that it is unfair that newer residents would be allowed to install docks or access facilities.
The Uebele Farm, Ltd., the Lees, and Ms. Velma Romatzke, landowners of nearby parcels, commented that they are in favor of the proposed reclassifications provided that approval of the proposal does not preclude additional lands from future reclassification. The landowners request that the licensee reclassify, or designate for future development, specific tracts of lands indicated on a map included with the landowners comments. The landowners believe that controlled development of the project shoreline is the optimal way to manage the project shoreline.
The Hixsons, residents within the Wightman subdivision, state in their comments filed on January 16, and April 20, 2007, that: the proposed amendment seems to prohibit any shoreline uses except for docks; that lot owners should each be allowed a private dock; that the 50-foot setback requirement is overly restrictive and does not conform with the setback contained within the agreement for the Wightman subdivision; and, that the licensee should permit the construction of decks and patios within 25 feet of the project shoreline. In support of their comment that each lot be allowed a private dock, the Hixsons state that the existence of more docks increases the level of shoreline protection by prohibiting watercraft from operating too close to the shoreline, increases the safety of children and swimmers along the shoreline, and avoids the potential for negative relations between lot owners. The Hixsons state that since users of the public boat ramp located adjacent to the Wightman subdivision litter the area, they would not object to additional docks on the lake, and that a dock per lot only amounts to four docks more than the original amendment proposal.(2)
(2) The draft amendment application included a condition requiring the sharing of one dock for every two lots in the Wightman subdivision. The licensee omitted this condition based on comments it received from the public.
In regard to the setback requirements proposed for the Wightman subdivision, the Hixsons comment that the 50-foot setback should apply only to the footprint of the structure, not the eaves or cantilevered patios or walkways, and comment that decks and other structures that are near ground level should be allowed within 25 to 50 feet of the shoreline. Further, the Hixsons comment that the 50-foot setback does not conform to the 25-foot setback included in the agreement for the Wightman subdivision. The Hixsons request that, if approved, the amendment should include all the permissible shoreline improvements listed in the agreement for the Wightman subdivision, and request that the licensee clarify the language of the proposal to be consistent with the agreement for the Wightman subdivision.
American Burying Beetle
Both the NGPC and FWS commented that the federally endangered American Burying Beetle (ABB) is known to occur near the areas proposed for reclassification. They requested that the licensee conduct surveys for the ABB to determine its presence or absence, prepare a written report presenting the findings of the survey, and submit the report to the NGPC and FWS for their review, comments, and further consultation if needed.
In response, the licensee conducted a survey for the ABB along the reservoir shoreline from June 22, 2007 through June 28, 2007. A report on the results of the survey was filed November 16, 2007, and a copy of the survey report to the NGPC and FWS. During the six days over which the survey was conducted, no specimens of the ABB were collected.
In its comments filed by the licensee on January 28, 2008, the FWS stated that upon review of the survey and habitat assessment results it has determined that the areas proposed for reclassification are not suitable ABB habitat. The FWS concurs that the proposed project will not adversely affect federally listed species or designated critical habitat. The FWS requests that the licensee restricts the use of mercury vapor and ultraviolet lights on the reclassified properties, and reinitiate consultation if there are any changes to the proposal. The NGPC comment letter, also filed by the licensee on January 28, 2008, noted that the NGPC does not have any objections to the proposed reclassification.
In reviewing the licensee’s proposal, the Commission staff prepared an environmental analysis (EA) to assess the potential for impacts resulting from approval of the proposal. The EA, issued on July 8, 2008, found that approval of the licensee’s proposal would cause little disturbance to the geologic, terrestrial, aquatic, recreational, aesthetic, cultural, and historic properties of the project area. The conditions imposed by the licensee’s shoreline plan, permits, and leases would adequately mitigate for impacts associated with the proposed reclassification. The EA concludes that approval of the licensee’s request would not constitute a major federal action significantly affecting the quality of the human environment.
Approval of the proposed amendment would not significantly increase boat traffic on Plum Creek reservoir. The conditions proposed by the licensee in the amendment application limit the number of access facilities and their capacity for each lot, so approval of the amendment would provide for, at most, the addition of 17 docks and 25watercraft on the lake if all properties within the subdivisions install access facilities. Addition of these docks would reduce the amount of area on the lake that is boatable for activities such as water skiing, but any impacts would be minimized through the licensee’s shoreline plan and permitting guidelines which ensure that docks do not extend too far from the shore and are appropriate in size.
As discussed in the EA, approval of the proposed amendment would not result in any long-term adverse impacts to water quality in the reservoir. This is because any access facilities installed would likely be constructed off-site and floated into place, reducing the amount of disturbance to the lake bed and shoreline. Minor, localized, temporary increases in turbidity would be expected impacts associated with installation of the access facilities. Additionally, the licensee’s shoreline plan requires that landowners adjacent to the project that wish to install access facilities maintain a 50-foot setback from the shoreline for all lawn establishment and maintenance. This provision would ensure that the vegetated buffer along the shoreline remains intact and continues to stabilize the shoreline and function as a filter for run off.
Also, as discussed in the EA, approval of the licensee’s proposal would not significantly increase the number of watercraft using the lake. Currently, the majority of development along the shoreline is concentrated in areas near the center and southern ends of the reservoir and comprises less than 50% of the total shoreline area. The lots comprising the Bellamy and Hutt subdivisions are large and would be limited to one access facilities per lot with a capacity of two watercraft, and the shoreline abutted by these areas does not include a significant number of coves. At the Wightman subdivision, the lots are small in size and would be limited to one access facilities per lot with a maximum capacity of one watercraft each.
While sale and development of residential properties often increases the value of surrounding properties, the effect of these changes on residents is outside the scope of the application. Thus, the Osborn’s comments regarding the increase of property taxes around Plum Creek reservoir is a matter outside the scope of the application and will not be addressed in this proceeding. In regard to the Osborn’s comment that the licensee previously informed them that no new shoreline structures would be approved, it is at the discretion of the licensee to determine whether to approve construction of shoreline improvements provided appropriate conditions are met and the uses and occupancies are not inconsistent with any terms and conditions of their license. The intent of the licensee’s amendment application is to reclassify areas of land that were mislabeled during the initial shoreline classification, address ongoing development at a subdivision that was primarily undeveloped during classification, and to enable residents of newly subdivided area to apply for access facilities.
The interest of the Uebele Farm, Ltd., Mr. Kermit and Glennis Lee, and Ms. Velma Romatzke to reclassify their lands as residential or receive a future-development overlay indicates a significant potential for additional development around Plum Creek reservoir. The licensee has determined that their request is not appropriate at this time due to the uncertainty of future development, and did not include their request as part of the application. Future requests to reclassify lands may be made of the licensee. However, it is the role of the licensee to determine that reclassification of additional lands is consistent with its goals of the shoreline plan and obligations of its license prior to filing an amendment application with the Commission.
If the proposed reclassification is approved, approximately 52 percent of the reservoir’s 74,800 feet of shoreline would be classified as residential. As is evident from the interest expressed in the reclassification of other areas at the reservoir, development pressure in the region is increasing and many landowners are subdividing their property holdings. The EA comments that, if the licensee wishes to request in the future additional variances to the shoreline plan or reclassification of the shoreline at Plum Creek Reservoir to allow for installation of private facilities, it may be required to develop a plan to mitigate for the loss of shoreline classified as open space. While this order does not require the licensee to develop any such plan, the licensee should carefully consider any future requests for variances or amendments of the shoreline plan at Plum Creek Reservoir with regard to their potential impacts on environmental resources and undeveloped shoreline at the reservoir.
In response to the comments of Mr. Olsen and the Hixsons, the licensee revised the amendment to allow one dock per lot for the Wightman subdivision. In its review of any applications for boat docks at the locations proposed for reclassification, the licensee must ensure that the configuration and design of any dock does not interfere with neighboring properties, or navigation and recreation on the lake and at the adjacent NGPC public boat launch, and is in accordance with all guidelines contained in the shoreline plan and permitting policy. Further, the licensee should ensure that the project boundary along the shoreline for each permit application for access facilities is clearly identified and marked prior to issuing any such permit.
Since the licensee’s application to amend the shoreline plan for the project states that lots at the Wightman subdivision are subject to a 50-foot setback from the shoreline, and this is the setback required by the shoreline plan for adjacent landowners who desire access facilities, we are approving the amendment to include this condition. As stated by the Hixsons, the agreement between the licensee and the Wightman subdivision includes a 25-foot setback requirement, but the shoreline plan and the amendment application both provide for a 50-foot setback. Therefore, a setback requirement of 50 feet from the shoreline applies to any adjacent lot owners who wish to apply for and install access facilities.
The licensee’s February 12, 2007 application to change the classification of certain lands around the Plum Creek reservoir, as modified by staff, is reasonable, and is approved.
The Director orders:
(A) The Central Nebraska Public Power and Irrigation District’s February 12, 2007, request to change the land use classification of certain areas around the Plum Creek Canyon reservoir, as modified by paragraphs (B) and (C) below, is approved.
(B) The licensee shall ensure that any permits issued for special water access facilities are consistent with the project’s Land and Shoreline Management Plan, particularly with regard to the required setbacks. Prior to issuing any such permit, the licensee shall ensure that the project boundary running adjacent to the applicant’s property is clearly identified and marked.
(C) The licensee shall include as conditions in any permits issued for special water access facilities or other activities on the reclassified lands the following:
1) Any lighting used shall be low-pressure sodium in order to minimize the risk of attracting American Burying Beetles.
2) The licensee shall include in any permit issued for special water access facilities or other activities a condition to protect any historic or archeological properties that may be discovered during construction, operation, or maintenance of the site. This condition shall require permittee to: (1) cease all activities at the site if any archaeological materials are discovered; and (2) immediately contact the licensee. The licensee shall then consult with the Nebraska State Historic Preservation Officer, and any tribes that might attach religious or cultural significance to the discovered materials to determine what steps need to be taken to evaluate the discovery and, if found to be eligible for listing on the National Register of Historic Places (NRHP), to mitigate any adverse effects. The licensee shall file with the Commission, for approval, a report on any discoveries determined to be NRHP eligible and adversely affected, along with proposed mitigation. No activity shall resume in the area of a discovery until the licensee is notified by the Commission that the requirements of this paragraph have been fulfilled.
(D) This order constitutes final agency action. Requests for rehearing by the Commission may be filed within 30 days of the date of issuance of this order, pursuant to 18 CFR § 385.713.
Robert J. Fletcher
Chief, Land Resources Branch
Division of Hydropower
Administration and Compliance