UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION

The Central Nebraska Public Power and Irrigation District

FERC Project No. 1417-198

THE CENTRAL NEBRASKA PUBLIC POWER AND IRRIGATION DISTRICT’S
REQUEST FOR CORRECTION, CLARIFICATION, AND/OR REHEARING

The Central Nebraska Public Power and Irrigation District (Central) files this Request for Correction, Clarification, and/or Rehearing (Request) under Rule 713 of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission (FERC), 18 CFR § 385.713 (2004). Central seeks correction, clarification, and/or rehearing of certain aspects of FERC’s July 9, 2008 Order Modifying and Approving Amendment of Land and Shoreline Management Plan (Order), 124 FERC ¶ 62,020 (July 9, 2008), issued in the above-captioned proceeding for its Kingsley Dam Project (FERC Project No. 1417 or Project).

I. BACKGROUND

On February 12, 2007, Central filed a request to amend its approved Land and Shoreline Management Plan (1) (LSMP) for FERC Project No. 1417, located on the North Platte and Platte Rivers in central Nebraska, to change the classification of certain lands at its Plum Creek Canyon Reservoir from their current designations of farm use or open-space/pasture to residential. Specifically, Central proposed to change the classification of five parcels of Project lands in three areas around the reservoir in order to correct errors made during the initial land classification to accurately reflect the use of that land, and to allow residents of newly developed lands adjacent to the Project to apply for permits for construction/water access facilities. The parcels proposed for reclassification are: (1) the Nelson and Peterson lots, long-time residential lots that were misclassified in the LSMP; (2) the Bellamy subdivision and Hutt lot; and (3) the Wightman subdivision, sited in an area of shoreline formerly developed as a county road. In addition, for the Wightman subdivision only, Central proposed a change in the LSMP to allow limited improvements in the 25- to 50-foot portion of the LSMP’s 50-foot setback normally required when permitting water access for previously undeveloped adjacent lands.

On July 9, 2008, FERC issued an Order granting Central’s request in large part with certain modifications. Several requirements are not contested by Central such as marking the Project boundary when issuing construction or water access permits to neighboring landowners and including conditions in permits issued for the reclassified lands to require the use of specific types of lighting to minimize potential impact on American Burying Beetles, and compliance with certain historic preservation measures.

In addition, Ordering Paragraph (B) states that “[t]he 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.” Central certainly intends to comply with its LSMP in the issuance of any permits, including with regard to setbacks. However, discussions in the body of the Order and in the July 2008 (issued on July 8, 2008) Environmental Assessment (EA) of the proposed LSMP amendment suggest that FERC and Central may not share the same understanding of what vegetation management activities in the setback areas are consistent with the LSMP, or of the disposition of Central’s request to accommodate limited improvements within normal required setbacks at the Wightman subdivision. For that reason, Central is seeking certain clarifications or corrections as set forth below. If FERC intended to prohibit certain vegetation activities in the setback areas or to deny the portion of Central’s proposed LSMP amendment related to setbacks at the Wightman subdivision, Central also seeks rehearing on these issues.

II. STATEMENT OF ISSUES

A. Establishment and maintenance of lawns within the structure and facility setbacks on private land.

FERC’s Order at page 6 indicates that Central’s LSMP requires construction/water access permits for adjacent lands not previously developed to include conditions prohibiting the establishment and maintenance of a lawn within a 50-foot setback from the shoreline. Central is not aware of such a requirement, and seeks correction or clarification. If FERC intended to require Central to impose no-lawn conditions in permits issued for all adjacent lands not previously developed, or to those in the Wightman subdivision, Central respectfully seeks rehearing. Central believes that the evaluation criteria and policies set forth in the LSMP support omitting such a condition given the special circumstances in the Wightman subdivision, and that the flexibility in the LSMP to make such a finding should be preserved. Central also seeks clarification as to whether FERC intended, as suggested by language in the EA and Order about maintaining an “intact vegetative buffer,” to require Central to prohibit any vegetation control whatsoever in the no-lawn areas. If so, Central seeks rehearing of that decision as well.

B. Allowing 625 square feet of ground-level patio, excavations or retaining walls in the 25- to 50-foot portion of the structure and facilities setbacks in permits for the Wightman subdivision.

FERC’s Order appears to imply, but not directly to state, that FERC intended to deny Central’s proposal to amend the LSMP to permit landowners in the Wightman subdivision to use up to 625 square feet of the land for patios, retaining walls, and similar ground-level improvements in the 25- to 50-foot portion of the structures and facilities setback. Central seeks clarification as to whether FERC is denying this portion of the LSMP amendment request, and if so, seeks rehearing on that issue given the special circumstances of this subdivision.

III. DISCUSSION

A. Establishment and maintenance of lawns within the structure and facility setbacks on private land.

1. The text of the LSMP does not require Central to prohibit establishment and maintenance of lawns in setback areas on private lands.

FERC’s Order at page 6 indicates that Central’s LSMP requires that construction/water access permits include conditions prohibiting the establishment and maintenance of a lawn in a 50-foot setback from the shoreline. Central is not aware of such a requirement. The LSMP states that Central will condition issuance of a construction permit or special water access permit for previously undeveloped lands to prohibit construction of “structures and facilities other than those intended to access the beach or water” within a 50-foot setback area (LSMP at page 50). The phrase “structures and facilities” is not defined in the setback discussion of the LSMP, but “structures and facilities” subject to the Permit to Construct process on leased Project lands are defined at page 51 by examples such as garages, sheds, “buildings that require footings or foundations,” “metal, brick, concrete or wood stairways,” and “landscape plantings that may affect lake views of other residences.” Lawn establishment and maintenance are examples of activities that may not need construction permits on leased Project lands, LSMP at page 52, so that they are apparently not “structures or facilities.” The LSMP is silent as to vegetation control in privately owned setback areas outside the Project boundary.

Central can condition permits to require riparian vegetation be maintained in a setback area, but is not required to do so. Under the LSMP, Central is charged with assuring that authorized construction or water access activities meet General Standards of Approval and evaluation criteria set forth at pages 54-55 and 59-62 of the LSMP. Meeting these standards and criteria may lead Central to impose conditions limiting lawn establishment or maintenance in a setback area – and, as discussed in the proposed LSMP amendment, Central plans to do in permits issued at the Bellamy subdivision and Hutt lot — but there is no blanket requirement to do so.

Central respectfully requests that FERC correct or clarify its statement in the Order at page 6 that lawn establishment and maintenance are prohibited by the LSMP in the 50-foot setback area.

2. The Order is unclear as to whether FERC intended to require Central to condition permits to prohibit lawns in the setbacks on additional adjacent lands not previously developed.

Ordering Paragraph (B) generally requires Central to “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.” Order at page 8. Central seeks clarification as to whether the Ordering paragraph, in conjunction with the language discussed above regarding establishment and maintenance of lawns, was intended to recognize or create a broader obligation to prohibit lawns in setbacks than the conditions Central anticipates including in permits at the Bellamy and Hutt properties. If so, Central seeks clarification as to whether that obligation is limited to the Wightman subdivision or extends to permits for access throughout the Project.

3. FERC should not require permit conditions prohibiting lawns within the structure and facility setbacks on private land for all adjacent lands not previously developed, or for the Wightman subdivision.

Central seeks rehearing if FERC intended to recognize or create a broader obligation to prohibit lawns within the structure and facility setbacks on private lands than the case-by-case imposition of such conditions in permits such as those Central expects to issue for the Bellamy and Hutt properties.

Because of the very diverse situations at the Project’s twenty-nine lakes and reservoirs, Central believes that the LSMP appropriately provides flexibility in meeting its evaluation criteria and general standards in the construction/water access permitting process. In determining what permitting conditions are appropriate for a particular lot or subdivision, Central considers the situation at that lake and on that parcel of land, balancing factors such as compatibility with adjacent and surrounding areas and impacts on the likelihood of erosion and the aesthetic and environmental resources in the area. Central anticipates that it may frequently be appropriate to include conditions limiting establishment and maintenance of lawns in setbacks, as it expects to do at the Bellamy and Hutt properties, to retain riparian vegetation and preserve views from the water, to delineate public access areas, to retain filter for run-off, to retain any natural erosion protection, or for other reasons. However, in the Wightman subdivision, examination of all considerations led Central to a different conclusion.

Most of the factors typically arguing for a no-lawn condition do not apply for this subdivision. Until quite recently, the shoreline in this area was a bare county road with no buffer between the road and lake, and the Project boundary was at or below the water’s edge. There is no preexisting shoreline ecosystem of riparian vegetation on either private or Project lands to preserve or enhance. Lawns aesthetically improve existing conditions rather than causing potentially adverse impacts, since no preexisting natural views of riparian vegetation exist to preserve for boaters. FERC indicates at page 6 of the Order that vegetation will also function as a filter for run off; while true, a lawn can also serve that function.

FERC also indicates that maintaining a vegetative strip will stabilize the shoreline from an erosion perspective, Order at page 6. Because erosion had been severe in the area, however, and the stabilizing influence of the roadbed was being removed, Central worked with the developers to restore and stabilize the shoreline at the Project boundary, installing rip rap and other approved erosion control facilities. With these stabilizing structures in place, the role of vegetation in reducing erosion will be minimal.

At Wightman, the limited benefits to prohibiting lawns in the 50-foot setback area are outweighed by the potential disadvantages. In this subdivision, 100-foot wide lots are as small as 0.51 acres, and bordered by the lake on one side and a county road on the opposite side. The lot owner must site a septic system (and have space for a reserve drainage field) between the home and the county road. This setback on one side, and a 50-foot no-lawn setback on the other, could leave some lot owners with few options to place a home and still have useful lawn space overlooking the water. If such owners opted to use the nearby public docks instead of accepting the restrictions a lake access permit would place on enjoyment of their property, they would be in a position to locate their homes as little as 25 feet from the shoreline. Central believes the aesthetic and environmental impacts of building so close to the lake go beyond those that might result from issuing a permit that allows establishment of lawns to the shoreline.
Central believes that on balance, the policies and evaluation criteria behind the 50-foot setback requirement are better met for the Wightman subdivision by omitting no-lawn conditions in construction/water access permits. To address the situation at this subdivision, and others that may arise, Central further believes that FERC should preserve the flexibility of the LSMP to impose no-lawn conditions on a case-by-case basis only.
For these reasons, if Ordering Paragraph (B) is intended to require Central to impose permit conditions prohibiting establishing and maintaining lawns on the setback areas on newly developed private lands generally, or at the Wightman subdivision in particular, Central respectfully requests reversal.

4. Conditions prohibiting the establishment and maintenance of lawns should not prohibit all mowing and other forms of vegetation control.

In the Order at page 6 and the EA at page 8, FERC indicates that permit conditions prohibiting the establishment and maintenance of lawns “would ensure that the vegetated buffer along the shoreline remains intact.” Central seeks clarification that FERC does not intend to require Central to impose narrowly drawn permitting conditions that completely prohibit vegetation control measures within the 50-foot setback area. If so, Central respectfully seeks rehearing on this issue.

There are a number of vegetation control measures short of establishing and maintaining a lawn that Central believes should be allowed under some circumstances and in some setback areas, including (but not limited to):

• Mowing, burning or chemical applications to control state-designated noxious weeds, poison ivy, etc;
• Seeding bare areas with native grasses and/or wildflowers;
• Maintaining a mowed and manicured pathway to a dock as part of the permitted access to the beach or water;
• Removal of trees that block vistas or compromise erosion control structures, homes or safety;
• Occasional mowing for such purposes as fire hazard reduction or rodent control.

For these reasons, if FERC intended to require Central to impose a strict vegetation control condition when prohibiting lawns, Central respectfully requests reversal.

B. Allowing 625 square feet of ground-level patios, excavation or retaining wall in the 25- to 50-foot portion of the structure and facilities setback in permits for the Wightman subdivision.

1. The Order is unclear as to whether FERC is denying Central’s request to amend the LSMP to permit limited improvements in portions of the setback areas in the Wightman subdivision.

Central seeks clarification as to whether FERC intended to deny the portion of Central’s amendment request that would allow issuance of construction/ water access permits that treat setbacks differently in the Wightman subdivision than elsewhere. They would allow landowners in that location only to use up to 625 square feet for patios, retaining walls, and similar ground-level improvements in the 25- to 50-foot portion of the typical 50-foot structures and facilities setback. This portion of the licensee’s proposal is summarized at page 3 of the Order, but not explicitly discussed again.

The Order appears to imply that FERC intends to deny this proposed change to the LSMP, but does not state it directly. Ordering Paragraph (B) of the Order states that “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.” Order at page 8. The EA elaborates at page 7 that

[t]he licensee’s proposal that a maximum of 625 square-feet of limited construction be allowed between 25 and 50 horizontal feet from the shoreline at the Wightman subdivision is not consistent with the conditions of the shoreline plan discussed above. For this reason, approval of the licensee’s proposal to reclassify the shoreline along the Wightman subdivision should strictly adhere to the setback requirements included in the approved shoreline plan.

Central agrees that allowing limited improvements in the 25 to 50-foot portion of the 50-foot structure and facility setback is not consistent with the language in the LSMP as approved by FERC in 2002. Thus, Central’s LSMP amendment request, in addition to seeking an amendment to reclassify Wightman development, sought to amend the 50-foot structure and facility setback requirement for this area alone. Central respectfully requests that FERC clarify whether it intended to deny this portion of the amendment request.

2. FERC should amend the LSMP to permit limited improvements in a portion of the setback areas in the Wightman subdivision.

Central believes amending the LSMP to permit the requested limited improvements in the setback area is consistent with the policies, evaluation criteria and general standards stated in the LSMP, if not the existing language. The intent of the 50-foot setback of structures and facilities is to preserve a suitable strip for access, to reduce the visual impact to boaters on the lake, and to reduce the likelihood of erosion issues. See generally General Standards for Approval and Evaluation Criteria, LSMP at 54-55 and 59-61. These intents are met even if 625 square feet in the more distant portions of a 5000+ square-foot setback contain unobtrusive ground-level patios or similar improvements.

As discussed above with respect to lawn establishment and maintenance, in this area, the Project boundary is at the water’s edge. Central has addressed erosion issues through installation of riprap and other erosion control structures, so issues of access and visual impact from the lake are key to evaluating appropriate conditions for these lots. As described in section III.A.3 above, with lots as small as 0.51 acres and a required offset from the county road to accommodate septic systems, strict application of the LSMP’s 50-foot structure and facility setback could leave some lot owners with few options to place a home and still have useful space for patios and similar improvements. If such owners opted to use the nearby public docks instead of accepting the restrictions a lake access permit would place on enjoyment of their property, they would be in a position to locate their homes as little as 25 feet from the shoreline, not merely their patios. The aesthetic and environmental impacts of building so close to the lake go beyond those that might result from issuing a permit that allows a 25-foot by 25-foot patio to be built at least 25 feet from the shoreline. Central believes that on balance, the policies and evaluation criteria behind the 50-foot setback requirement are better met for the Wightman subdivision by allowing lot owners here only to make the requested limited improvements in the 25-50 foot portion of the setback areas.

For these reasons, Central respectfully requests that the LSMP be amended consistent with its amendment request, authorizing Central to issue permits at the Wightman subdivision that allow lot owners to use up to 625 square feet for patios, retaining walls, and similar ground-level improvements in the 25- to 50-foot portion of a 50-foot structures and facilities setback.

IV. CONCLUSION

For the reasons stated above, Central respectfully requests that FERC grant each request in its Request for Correction, Clarification, and/or Rehearing.

Respectfully submitted,
/s/ Mary Jane Graham
Attorney for The Central Nebraska Public Power and Irrigation District

1390 Chain Bridge Road
# 820
McLean, Virginia 22101
Tel: (703) 734-9564

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Footnote

1.  See Order Modifying and Approving Land and Shoreline Management Plan, 101 FERC ¶ 62,015 (October 7, 2002).

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CERTIFICATE OF SERVICE

I hereby certify that I have upon this day caused The Central Nebraska Public Power and Irrigation District’s (Central’s) Request for Correction, Clarification, and/or Rehearing and cover letter to be served electronically or by first class U.S mail upon the following persons.

Kimberly D. Bose, Secretary
Federal Energy Regulatory Commission
888 First Street, N.E.
Washington, D.C. 20046

Terry K. Barber
Barber & Barber, P.C., L.L.O.
300 North 44th Street, Suite 205
P.O. Box 4555
Lincoln, NE 68504-0555

Dated at McLean, Virginia, August 7, 2008.

/s/ Mary Jane Graham
Attorney for The Central Nebraska Public Power and Irrigation District