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 its 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”) (collectively, the “Agencies”), 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”), including lands located both inside and outside of the Project boundary and Central’s right of way. 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 recreation 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. Under the requirements of the LSMP, Central may not issue a permit to construct for such 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 recreation 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. This agreement provides that the landowner may make application and be permitted water access structures, and 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.”
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.
The American Burying Beetle is a federally-listed and state-listed endangered species. The American Burying Beetle has the potential to be present in or near the areas being considered for a change in classification. Additional information regarding the American Burying Beetle can be found in consultation letters from USFWS and NGPC in Appendix B.
RECOMMENDATIONS 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.
All Areas
Pursuant to the recommendations of FWS and NGPC, Central will conduct a survey for the American Burying Beetle in 2007 in accordance with the Nebraska American Burying Beetle Sampling Protocol and prepare a written report on its findings. In the event that such survey indicates the presence of the American Burying Beetle, Central will consult with the USFWS and NGPC, with the understanding that such consultation may result in the establishment of additional requirements, restrictions, or conditions on the use of Project lands and waters within Areas 1, 2 and/or 3. In order to address concerns related to the American Burying Beetle, until such survey and consultation (if required) are complete, Central will restrict activities on Project lands and waters within Areas 1, 2 and 3 as follows: (1) any new construction must be in locations where there has already been soil disturbance in the previous five years, and (2) outside lighting installed must be sodium vapor, low-mast, directional lighting. Upon receiving approval of this amendment, Central would send a letter to landowners describing these restrictions on the issuance of permits and the recommendation from FWS and NGPC that low level lighting also be used on non-Project lands.
Area 1 – Nelson and Peterson Lots
The classification change is warranted because these lots have been used historically for residential purposes, including shoreline access. As a result, there should be little or no impact to scenic, recreational, or other environmental values of the Project in correcting the erroneous classification, changing the classification to “Residential” and providing the opportunity for personal access to the Project lands and waters. 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
This classification change is warranted because these lots are largely outside the Project boundary where construction can take place without Central’s review or approval. The lots are large and few in number. With the conditions proposed below to minimize shoreline impacts and limit the number of SWAF and watercraft from these lots, impacts to scenic, recreation and other environmental values are expected to be small and outweighed by the benefits obtained through the erosion agreement in this limited area. 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 serving no more than two watercraft per lot, and any future subdivision of lots would not result in an increase in the number of SWAF and watercraft permitted.
Area 3 – Wightman Subdivision
This classification change is warranted because these lots are largely outside the Project boundary where construction can take place without Central’s review or approval. The lots are few in number. With the conditions proposed below to minimize shoreline impacts and limit the number of SWAF and watercraft from these lots, impacts to scenic, recreation and other environmental values are expected to be small and outweighed by the benefits obtained through the erosion agreement in this limited area, and the benefits of resolving the contract issues on set-back with these adjacent landowners. 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. would be permitted in each lot between 50 and 25 feet horizontal from the normal high water mark, as determined by Central. SWAF would be limited to serving no more than one watercraft per lot, and any future subdivision of lots would not result in an increase in the number of SWAF and watercraft permitted.
CONSULTATION
See Appendix B for copies of the documents regarding consultation with the agencies and public comments on changing land use classifications at Plum Creek.
Agencies and Local Governments
On December 15, 2006 letters were sent to USFWS, NGPC, Dawson County, and Gosper County requesting comments on the 12/14/2006 Draft Amendment Application. Central then met with Dawson County and Gosper County representatives on December 20, 2006; and had a December 21, 2006 teleconference with USFWS and NGPC. In a January 22, 2007 e-mail from Mike Drain of Central to USFWS and NGPC regarding possible changes to the Draft Amendment Application concerning the requirement to share one dock for every two lots in Area 3, Central requested that their comments, if any, on this issue be included with their comments on the Draft Amendment Application. Central received written comments dated January 26, 2007 on the Draft Amendment Application from USFWS and NGPC, in which the primary concern was possible negative impact on the American Burying Beetle, an endangered species. Central incorporated the Agencies recommendations in the Recommendations and Conditions section above to address these concerns.
Regarding the possible impact on cultural resources, Central sent a December 15, 2006 letter to Greg Miller of the Nebraska State Historical Society requesting comments on the 12/14/06 Draft Amendment Application. The Nebraska State Historical Society, representing Nebraska’s State Historical Preservation Officer (SHPO), responded with a January 7, 2007 letter stating that this amendment would have no effect for archaeological, architectural, or historic properties.
Central also sent a December 15, 2006 letter to John Moeschen of the U.S. Army Corps of Engineers (“Corps”) requesting comments on the12/14/06 Draft Amendment Application. Central did not receive any comments from the Corps
Local Landowners and the General Public
In 2005, Central initiated the LSMP Section 7.B.1. process to reclassify land uses at Plum Creek to “Residential” for certain adjoining properties. This began with an initial meeting with the landowners adjacent to Plum Creek on November 3, 2005 to gather information related to intentions for future development. This was followed with individual contacts between Central staff and the landowners during 2005 and 2006. Central sent a July 7, 2006 letter to landowners adjacent to Plum Creek regarding Central’s preliminary determination of the LSMP land use classification changes that are currently warranted. On December 15, 2006, Central sent a letter to the landowners and tenants at Plum Creek advising them of the availability of the 12/14/2006 Draft Amendment Application and how the public can make comments, including a special e-mail address, and advising them of a public meeting on January 4, 2007 in Lexington to discuss the Draft Amendment Application. The availability of the Draft Amendment Application, the public meeting, and the opportunity to comment were also made known to the general public by posting this information on Central’s website and with a public notice in local newspapers (the Kearney Hub and Lexington Clipper-Herald on December 16, 23 & 30, 2006). Copies of the public comments received are in Appendix B.
The May 21, 2003 Agreement between Central and the owner(s) of the lots in the Wightman Subdivision provides that no building or structure be constructed within 25 feet of the shoreline, and 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. The parties disagree regarding the meaning and potential for conflict in these provisions. 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. 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. In this Amendment Application, Central recommends that some construction be allowed between 25 feet and 50 feet from the shoreline, as described in the Recommendations and Conditions section above.
In response to public comments, and in the absence of negative comments from USFWS and NGPC, Central has revised the 12/14/2006 Draft Amendment Application to eliminate the requirement for lot owners to share one dock for every two lots in Area 3, but retaining a limit of one watercraft per lot in Area 3. Also in response to some public comments, docks have been replaced with SWAF for Areas 2 and 3, allowing whatever types of SWAF are permitted by Central’s then-current permitting procedures.
Central did not add a new “future development” overlay as requested by one commenter since (1) such change may require an additional round of notice and consultation, unnecessarily delaying this application; (2) such request could be addressed separately in the future under Section 7.B.2. of the LSMP; and (3) Central is uncertain of the value of adding a “future development” overlay zone at this time in light of the ongoing Section 7.C.1. 5-Year review and update of the LSMP. Central also did not agree to no additional development as suggested by one commenter.
APPENDICES
Appendix A – Figures
Appendix B – Record of Consultation
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
APPENDIX A
FIGURES
See the attached figures described below:
Figure 1 – Location and current land use classifications for Areas 1, 2, and 3.
Figure 2 – Approximate shoreline lengths and areas for Bellamy, Hutt, and Wightman Subdivison lots.
Figure 3 -Recommended land use classifications for Areas 1, 2, and 3.
APPENDIX B
RECORD OF CONSULTATION
Appendix B includes the following documents:
12/14/2006 Draft Amendment Application for the December 2002 Land and Shoreline Management Plan Regarding Land Use Classifications at Plum Creek Canyon Reservoir without the Appendix A figures (maps) (“Draft Amendment Application”)
Agencies and Local Governments
January 26, 2007 e-mail from Frank Albrecht of NGPC with comments on the Draft Amendment Application
Local Landowners and the General Public
January 8, 2007 e-mail from Teresa & Kevin Osborn with comments on the Draft Amendment Application
January 16, 2007 letter from Steve Windrum with comments on the Draft Amendment Application
January 18, 2007 letter from Bruce Hart with comments on the Draft Amendment Application
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