Protecting Shorelands as Part of the Hydroelectric Relicensing Process - Lessons from New England

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Protecting Shorelands as Part of the
Hydroelectric Relicensing Process - Lessons from
New England

• Kenneth Kimball
• Research Department
• Appalachian Mountain Club

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Incredible Opportunities

• ECPA - landscape change in FERC mandate in 1986
• Rivers becoming much cleaner due to CWA,
  increased public interest and available resources
• Class of 1993 dams and after has created huge
  opportunities challenges

• Hydropower Reform Coalition (NGOs put major
  emphasis to educate the public on impacts of dams
  and that the public owns the rivers)
• Web access to FERC filings, decisions
• More public and visible relicensing process

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Competing Legitimate Demands

• Hydro generation
• aquatic resource flows
• recreation boating flows
• reservoir level controls
• shoreland protection
• fish passage

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Rivers on
Variable flows cause
Rivers off
- Lost aquatic habitat
- Lost recreational opportunities
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Aquatic Resource and Recreation
Flows
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Recreational Access
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Abbreviated History of Settlements

• FERC distrusted settlements (loss of authority)
• FERC receives settlements through the traditional
  process
• FERC develops APEA process that encourages
  settlements

• FERC accepts settlements, but as a Chinese menu
  - rejects elements it believes are outside its
  jurisdiction
• FERC develops ILP licensing process 2003

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What Makes a Settlement Work

• Need for a respected moderator or facilitator
  (NGO, govt agency, applicant consultant, FERC
  ADR - all have worked)
• establish negotiation ground rules
• have confidentiality agreements
• focus on substance and minimize lawyers
• create supporting record for decisions
• Meet frequently and keep progress moving on
  elements where agreement can be reached

• Keep fact based/use models
• Understand rarely does any one get 100 of their
  special interest
• avoid infighting, e.g. boaters vs fishermen, land
  protection vs. flows
• certain elements may be outside the realm for
  negotiations (basic 401 requirements, historic,
  etc.)
• be clear on whether all settlement elements are
  expected to be or can be in final license
  articles

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Major Watershed Gains in NE

• gt 40,000 acres protected
• 20 million in river
• enhancement funds

• gt200 miles of improved
• river flows
• protected boating
• opportunities
• improved fisheries and
• wildlife habitat

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Deerfield Settlementchanged from single interest
to multi-interest settlement

• New England Power (USGen)
• Appalachian Mountain Club
• American Rivers
• American Whitewater
• Conservation Law Foundation
• Deerfield River Compact
• Deerfield River Watershed Association
• MA Division of Fisheries and Wildlife

• MA Dept. of Environmental Management
• New England FLOW
• National park Service
• Trout Unlimited
• US Environmental Protection Agency
• US Fish and Wildlife Service
• VT Agency of Natural Resources

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Deerfield River (85 MW)

• 40 -year license
• ability to continue peaking
• 18,350 acres in perm conservation easements
• 100,00 enhancement fund
• relocate endangered plant
• 12 miles of dry bypass now w/ min flow
• augmented min. flow in another 33 miles

• improved water quality
• reservoir drawdown limitations
• over 100 whitewater releases
• 37 new or upgraded recreational facilities
• 3 down and 1 upstream fish passage

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Deerfield River flow enhancement
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Deerfield River land protection
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Fifteen Mile Falls(settlement negotiated in 8
months with pending sale, APEA w/ coordinator)

• New England Power (US Gen)
• Governors of NH and VT
• Appalachian Mountain Club
• Connecticut River Joint Commissions
• Connecticut River Watershed Council
• Conservation Law Foundation
• National park Service
• NH Dept. of Environmental Services

• NH Fish and Game Department
• North Country Council
• Northeastern VT Development Council
• Trout Unlimited
• US Environmental Protection Service
• US Fish and Wildlife Service
• VT Agency of Natural Resources

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Fifteen Mile Falls (369 MW)

• 40-year license
• ability to continue peaking operation
• 12,000 acres into permanent conservation
  easements
• 10.5 to 17 million dollar enhancement fund
• min flows for over 100 miles
• some reservoir drawdown limits to protect aquatic
  resources

• improved water quality
• down and upstream passage based on triggers
• Recreational enhancements
• wildlife and forestry management plans
• resolved environmental issues on an unlicensed
  storage reservoir in a separate MOU

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Upper Connecticut River
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Land Protection - Androscoggin River
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Linking Projects - a Watershed Approach

• Moosehead (storage) - FPL Energy Maine, limited
  settlement as part of license article
• Indian Pond (peaking) - FPL Energy Maine,
  comprehensive settlement through APEA process
• Wyman (peaking) - FPL Energy Maine, limited
  settlement as part of license article
• Madison (ROR)- Madison Paper Company,
  comprehensive settlement through APEA process

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• FERC will require justification for the overall
  location of the shoreline buffer zone from the
  intervenor(s).
• FERC applies a simplistic formula up to 200 foot
  buffer zone, basis ??
• Little evidence FERC accepts outright
  scientifically determined buffers

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The strongest case one can make for the need of a
protective shoreline buffer is to identify the
location of specific water quality, ecological,
aesthetic and/or recreational values. It is
equally critical to quantify threats to these
values.

• Describe, by actual location, where shoreline
  protection is essential for the protection of
  these resources over the tenure of the new
  license to be issued.
• If the resource is of local or regional
  significance, then make the case for protection.
  Is the land the last undeveloped major shoreline
  that provides a unique recreational and aesthetic
  opportunity, or harbors a critical wildlife
  habitat like a deer wintering yard?
• Is residential or second home development the
  threat? obtain the relevant zoning ordinances and
  calculate the theoretical residential or
  commercial build-out that could occur to
  demonstrate the magnitude of the development
  threat if the shoreline is not protected.

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Laws, Regulations and License Articles Affecting
Shoreline protection-- Federal Power Act --
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Equal Consideration - Section 4(e) of the Federal
Power Act requires FERC to give "equal
consideration to the purposes of energy
conservation, the protection, mitigation of
damage to, and enhancement of, fish and wildlife
(including related spawning grounds and habitat),
the protection of recreational opportunities, and
the preservation of other aspects of
environmental quality." This is an important
provision of the act with regards to land
protection because it gives FERC the authority to
include conditions in the license that set aside
lands for recreational development, establish
buffer zones along project shoreline, protect
visual and aesthetic values of project lands, or
protect lands for wildlife habitat. If the
project is located on or within any federal
reservation this section also gives authority to
the responsible federal land management agency to
file terms and conditions that protect the
reservation to be included in the project
license. Federal reservations include National
Forests, National Parks, Land and Water
Conservation Fund Act lands, National Trails,
Wilderness Areas, National Wildlife Refuges, and
other public lands.
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Comprehensive Plan - Section 10(a) of the act
specifies that a hydroelectric project can be
developed by an individual or corporation, or an
agency of a municipality or state provided it is
"best adapted to a comprehensive plan for
improving or developing a waterway or waterways
for the use or benefit of interstate or foreign
commerce, for the improvement and utilization of
water power, for the adequate protection,
mitigation, and enhancement of fish and
wildlifeand for other beneficial public uses
including irrigation, flood control, water
supply, and recreational and other purposes".
FERC requires project applicants to identify all
applicable comprehensive plans developed by state
and federal agencies and determine if the project
will comply with these plans (18 CFR 4.38). See
section 3.1.d for examples of these plans.
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Comprehensive Plans of other federal, local, and
state agencies that outline land protection
needs, particularly if specific to the hydro
project of concern, can justify land protection
during relicensing. FERC currently lists over 800
comprehensive management plans from other
agencies that meet their criteria for being
considered during the licensing process (Revised
List of Comprehensive Management Plans, April
2002)  

• Examples  
• Wildlife Refuge Management plans
• USFS - Forest Management Plans
• Best management practices for timber harvesting
• National Marine Fisheries Service management
  plans
• State water quality plans for river and
  "beneficial use" designation  
• State and regional river management plans
•      

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• Fish and Wildlife Agencies - Section 10(j)
• FERC has to address and then either accept or
  refute recommendations from these resource
  agencies relative to the protection, mitigation,
  and enhancement of fish and wildlife resources
  impacted by the project.
• Shoreline protection request adequately
  researched and presented by these resource
  agencies can be very effective at protecting
  lands. Request must specify the resources that
  would be protected by such actions, for example
  an adequate buffer to protect a heron rookery,
  bald eagle nesting site, or wetland.
• Section 10(j) is a potent tool, but only if
  properly executed.

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Laws, Regulations and License Articles Affecting
Shoreline protection-- FERC Regulations--
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Lands for Recreation
-18 CFR 2.7  This regulation states that
"reasonable expenditures by a licensee for public
recreational development pursuant to an approved
plan, including the purchase of land, will be
included as part of the project cost The
Commission expects the licensee to assume the
following responsibilities (a) To acquire in fee
and include within the project boundary enough
land to assure optimum development of the
recreational resources afforded by the
project." It is not mandatory for FERC to
require a Licensee to prepare a shoreline
management plan or actually protect certain
lands. But FERC has an obligation if the proper
evidence exists.
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(2) Project boundary. The map must show a
project boundary enclosing all of the principal
project works and other features The boundary
must enclose only those lands necessary for
operation and maintenance of the project and for
other project purposes, such as recreation,
shoreline control, or protection of environmental
resources (see paragraph (f) of this section
(Exhibit E)). Existing residential, commercial,
or other structures may be included within the
boundary only to the extent that underlying lands
are needed for project purposes (e.g., for
flowage, public recreation, shoreline control, or
protection of environmental resources)"
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Environmental Report - 18 CFR 4.51(f)  Exhibit
E must include descriptions of fish, wildlife,
and botanical resources, historic and
archeological resources, recreational resources
and a report on land use. The report must also
describe the impacts the project will have on
these resources and any mitigation measures
proposed.   "A statement including an analysis
of costs and other constraints, of the
applicant's ability to provide a buffer zone
around all or any part of the impoundment, for
the purpose of ensuring public access to project
lands and waters and protecting the recreational
and aesthetic values of the impoundment and its
shoreline" 18CFR4.51(f)(6)(iv).
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Water Use and Quality Do the project waters meet
state water quality standards that apply to the
project, and if not, do activities on reservoir
shoreline either contribute to the problem
directly or cumulatively? Would further
development of the shoreline increase an existing
water quality problem or create one? For example
are low dissolved oxygen levels or eutrophication
an identified water quality problem in the
reservoir?
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Wildlife and Botanical Resources Does a thorough
inventory of wildlife and botanical resources
exist? Are there federal or state listed rare
and threatened species or exemplary ecological
communities thriving on these shorelines? Do
current project boundaries and resource
management plans actually provide long-term
protection of the wildlife and botanical
resources identified? If not, how should they be
modified to protect these resources? Provide
site-specific information on which and how much
land should be protected.
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Historical and Archeological Resources Does the
shoreline encompass Native American sites or
other historical resources that development could
threaten? Is a plan proposed to protect the
required lands with an adequate buffer?
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Geology and Soils Do areas with existing or
potential erosion or slope instability influenced
by reservoir water level manipulations or
discharges exist along the reservoir or in
impacted downstream reaches? Would changes in
land-use further increase the problem?
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Recreation Resources -Is an undeveloped
shoreline one of the key regional amenities for
recreational pursuits such as boating, canoeing,
camping, hiking and other recreation? --How rare
or threatened are undeveloped shorelines for
recreation in the region? --Has an adequate case
been presented for the value and increasing
rarity of recreation on primarily undeveloped
shorelines?
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Visual Resources Is one of the key visual and
aesthetic values of the lands surrounding the
project reservoirs the undeveloped shoreline? Is
this resource identified and protected?
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Land Use and Comprehensive Plans -- Is there an
accurate depiction of uses of land and resources
adjacent to the project using maps, air photos
that clearly delineates the land ownership,
project boundary, and boundaries of public lands?
--Is the Licensee presenting clearly what
shoreline lands they may own through either
direct or indirect subsidiary holdings that are
not currently in project boundaries? --Has the
Licensee not only identified relevant planning
and zoning regulations to the shorelines, but
also what the potential build out is under
current zoning? --Has the Licensee included an
accurate analysis of costs and other constraints,
to provide a buffer zone around all or any part
of the impoundment, for the purpose of ensuring
public access to project lands and waters and
protecting the recreational and aesthetic values
of the impoundment and its shoreline? --Have
they indicated that they cannot purchase
additional shoreline to protect identified
resources, when in reality their lands are held
by another holding company within the same
corporation?
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The reservoir of concern is part of a nationally
recognized multi-day backcountry canoe trip used
extensively by the public (supporting
documentation was provided). The Licensee should
document the importance of this recreational
resource and the role the impoundments
undeveloped shoreline provides. Loss of access to
the impoundment shoreline through development is
the pivotal issue. The Licensee presents the
case that the Maine Land Use Regulatory
Commissions (LURC) zoning regulations will
protect the shoreline. LURC has provisions for
the development of binding Lake Concept Plans
developed voluntarily by the landowner (Maine's
LURC Amendment of the Comprehensive Land Use Plan
- Adopted June 7, 1990). The Licensee has not
submitted such a plan. Our calculations
(calculations attached)) show 348 new residences
under LURC zoning could be built on the owners
impoundment reservoir lands, and this does not
include the fact that LURC Zoning could be
changed during the course of the 30 year license
to permit further development. This would
essentially privatize the shoreline, making it
inaccessible to the public, and deter from its
unique backcountry recreation value. The
Licensees lands on these reservoirs have been
through 3 different owners in the last few years,
so the possibility of sell off and development is
more than theoretical. A recent Northern Forest
Land Council Study (attachment) shows that the
majority of subdivisions in the region occur on
waterfront. Finally, the Licensee owns the land,
therefore the cost of protecting these critical
lands is not cost prohibitive.
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• In License Article Pros and Cons
• transfer ownership?
• (e.g. Androscoggin Land Trust)
• New owner willing to have FERC involved?
• (e.g. East Outlet and State of ME, RLHT)
• On-site or off-site mitigation or enhancement
• (e.g. addition to Rangeley Lake State Park)

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"(a) In accordance with the provisions of this
article, the licensee shall have the authority to
grant permission for certain types of use and
occupancy of project lands and waters and to
convey certain interests in project lands and
waters for certain types of use and occupancy,
without prior Commission approval. The licensee
may exercise the authority only if the proposed
use and occupancy is consistent with the purposes
of protecting and enhancing the scenic,
recreational, and other environmental values of
the project. For those purposes, the licensee
shall also have continuing responsibility to
supervise and control the use and occupancies for
which it grants permission, and to monitor the
use of, and ensure compliance with the covenants
of the instrument of conveyance for, any
interests that it has conveyed, under this
article (b) The type of use and occupancy of
project lands and waters for which the licensee
may grant permission without prior Commission
approval are (1) landscape plantings (2)
noncommercial piers, landings, boat docks, or
similar structures and facilities that can
accommodate no more than 10 watercraft at a time
and where said facility is intended to serve
single-family type dwellings and (3)
embankments, bulkheads, retaining walls, or
similar structures for erosion control to protect
the existing shoreline   (c) The licensee
may convey easements or rights-of-way across, or
leases of, project lands for (1) replacement,
expansion, realignment, or maintenance of bridges
and roads for which all necessary state and
federal approvals have been obtained (2) storm
drains and water mains (3) sewers that do not
discharge into project waters (4) minor access
roads (5) telephone, gas, and electric utility
distribution lines (6) non-project overhead
electric transmission lines that do not require
erection of support structures within the project
boundary (7) submarine, overhead, or underground
major telephone distribution cables or major
electric distribution lines (69 kV or less) and
(8) water intake or pumping facilities that do
not extract more than one million gallons per day
from a project reservoir   (d) The licensee
may convey fee title to, easements or
rights-of-way across, or leases of project lands
for (1) construction of new bridges or roads for
which all necessary state and federal approvals
have been obtained (2) sewer or effluent lines
that discharge into project waters, for which all
necessary federal and state water quality
certification or permits have been obtained (3)
other pipelines that cross project lands or
waters but do not discharge into project waters
(4) non-project overhead electric transmission
lines that require erection of support structures
within the project boundary, for which all
necessary federal and state approvals have been
obtained (5) private or public marinas that can
accommodate no more than 10 watercraft at a time
and are located at least one-half mile from any
other private or public marina (6) recreational
development consistent with an approved Exhibit R
or approved report on recreational resources of
an Exhibit E and (7) other uses, if (i) the
amount of land conveyed for a particular use is
five acres or less (ii) all of the land conveyed
is located at least 75 feet, measured
horizontally, from the edge of the project
reservoir at normal maximum surface elevation
and (iii) no more than 50 total acres of project
lands for each project development are conveyed
under this clause (d)(7) in any calendar year
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License Articles, Land ownership and Easements

• Easements
• Who Holds?
• Term (length of License) or Permanent?
• Easement Endowment Fund?
• What's permitted?

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