FERC's Latest Official Explanation of Shoreline Management

posted Apr 28, 2012, 8:45 AM by Site administrator   [ updated Oct 14, 2014, 10:46 AM ]
... Frequently Asked Questions (FAQs)   Hydropower - Shoreline Management

(Source:  http://www.ferc.gov/help/faqs/shoreline-mgt.asp )

   As the United States population continues to grow, people are moving to the country’s lakes and the demand for waterfront property and use of hydropower reservoirs is growing. The increased commercial and residential development around many project reservoirs has placed additional pressures on the project reservoir and shoreline resources and poses greater challenges to licensees in managing their projects to meet their license responsibilities and obligations. Where competing uses of project lands and waters arise, a licensee may either on its own initiative, or as required by its FERC license, develop a comprehensive shoreline management plan (SMP) to manage the multiple resources and uses of a project reservoir’s shorelines in a manner that is consistent with license requirements and project purposes, while addressing the needs of the general public. 

CURB Commentary ...

Why is it that FERC staff in Washington believes it knows better how to regulate shoreline than local governments and communities that invested and developed these projects?  Nothing in the Federal Power Act (FPA) requires a shoreline management plan; nor does it empower the Commission with absolute control of the project boundary; nor does the FPA require the development of conflicting or duplicative regulations to supplant adequate existing Federal, State or Local code.

1.  What is a shoreline management plan (SMP)?

Shoreline management is a longstanding FERC initiative intended to protect the shoreline around hydropower projects reservoirs. An SMP is a comprehensive plan to manage the multiple resources and uses of the project's shorelines in a manner that is consistent with license requirements and project purposes, and addresses the needs of the public. Striking a balance between local economic interests and protecting project resources associated with conditions of the license allows the public to enjoy those resources, and is vital for the long-term success of an SMP.

An SMP addresses issues such as which areas should be reserved for various purposes (recreation, environmental protection, residential and commercial development) and what structures – piers, boat docks, patios, etc., may be constructed on licensee-owned shoreline lands. These plans are prepared by licensees in cooperation with local stakeholders and resource agencies, and submitted to the Commission for approval.

CURB Commentary ... 

Actually a Shoreline Management Plan is a relatively new FERC staff initiative.  FERC staff defines its Shoreline Management Policy in its 2001 publication – “Guidance for Shoreline Management Planning at Hydropower Projects.”   However, this guide, on page 4, caveats its authority: “This document was prepared by the staff of the Office of Energy Projects and does not necessarily reflect the views of the Federal Energy Regulatory Commission.” 

The history of shoreline management is a troubled one as few if any plans were prepared in cooperation with local stakeholders.  In the case of older projects, those built prior to 1970, much of the land in the project is not owned in fee simple by the project operator.  Rather, flowage easement deeds grant project operators the right to overflow or flood lands.  In some projects, even if the project operator owned in fee simple project lands, they granted easements to abutting land owners to use the lands and construct structures including boat docks, piers and ramps without restriction.

2.  Why is an SMP needed?

Licensees have a responsibility to ensure that shoreline development activities that occur within a project boundary are consistent with project license requirements, purposes, and operations. As development and multiple uses of the shoreline continue to grow, licensees will face more and more challenges related to the effects of such development on project lands and waters, including public recreational use and environmental resources. An SMP can assist the licensee in meeting its responsibilities throughout the term of its license.

CURB Commentary ... 

Most individuals agree that regulation is necessary to preserve project character and not threaten its scenic, recreational or environmental attributes.  The question is, who should regulate development.  CURB's opinion that these decisions are best made by State and Local governments as they are the elected representatives of the people.

3.  What is required to be included in an SMP?

While these plans are specific to a particular project, SMPs should generally contain a summary of the purpose, goals and objectives of the plan and a description of the shoreline use classifications, with identifies allowable and prohibited uses for existing and future use of the shoreline. A plan may have multiple classification or sub-classification types, but they usually fall within three general types: (1) a protected or natural resource preservation classification; (2) a limited development classification; and, (3) a more intensive development classification. These plans should also include: (a) maps showing the shoreline classifications in relation to the project reservoir, project boundary, and various other features; (b) a permitting program and guidelines developed by the licensee; (c) a monitoring and enforcement program; and (d) provisions for periodic review and update of the plan.

CURB Commentary ... 

There are sufficient existing Federal, State and Local code and regulation to protect project resources and any shoreline management plan should be coordinated / synchronized with existing code to eliminate inconsistency and duplication.

4.  Who is responsible for enforcing the provisions of an SMP?

The licensee for the project is responsible for enforcing the SMP. The licensee enforces the SMP by overseeing shoreline activities and taking actions to prevent unauthorized uses of project shorelines. The licensee must ensure that the proposed uses of the shoreline are consistent with the purposes of protecting and enhancing the scenic, recreational, and environmental values of the project while safely operating and maintaining the project.

CURB Commentary ... 

It would be nice if FERC followed its own guidance and allowed its licensees to follow these principles “… The SMP should be monitored and reviewed on a regular basis to determine how effective it is in accomplishing its goals, and to respond to new or evolving situations or conditions. … By including stakeholders, the Shoreline Management Plan (SMP) will be stronger and more acceptable … A well-crafted SMP results in a stakeholder and licensee partnership.”

5.  What is FERC’s role in shoreline management?

Congressional mandates and court decisions over the past few decades have required FERC to balance competing uses of hydropower projects, including (but not limited to) power development, environmental protection, flood control, irrigation, and public recreation (such as fishing and boating) when issuing hydropower licenses. FERC’s responsibility is to be a steward of the public’s resources while ensuring licensees comply with the various conditions of the hydropower license imposed in their licensee. With regard to the SMP, FERC initially reviews and approves SMPs (usually with modifications) and then assures that the licensee is properly implements the provisions of the SMP as approved.

CURB Commentary ... 

Nothing in the Federal Power Act (FPA) requires a shoreline management plan; nor does it empower the Commission with absolute control of the project boundary; nor does the FPA require the development of conflicting or duplicative regulations to supplant adequate existing Federal, State or Local code.

6.  What is the relevance of the FERC project boundary at a licensed project?

Project boundaries are used to designate the geographic extent of the hydropower project that FERC determines a licensee must own or control on behalf of its licensed hydropower project. The project 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, as designated in the project license. It should be noted that the establishment of the project boundary does not have any impact on property rights. Whatever rights landowners have in lands within the project boundary – whether conferred by deed, lease, easement or other conveyance – will not change. [Emphasis added]

CURB Commentary ... 

The last [emphasized] FERC statement should be taken as fact.  A Shoreline Management Plan that impacts or encumbers your property rights, cannot do so, according to the FERC.

 Shoreline Management Plan is a contract between the FERC and its project operator.  The FERC has no power to impose regulations on citizens or state and local governments.  By requiring its project operators to develop and enforce regulations, the FERC uses its licensees to regulate citizens by proxy.

CURB recommends that all lake front property owners carefully research their deeds and chain of title.  Flowage easement deeds simply gave licensees the right to overflow lands, they did not transfer property ownership or property rights.  Property owners have the right to access project waters, the right to construct docks, the right to use their lands in accordance with their rights and privileges as fee simple owners.  In some projects, the licensee sold adjacent lands with easements permitting the construction of structures in and over the projects lands and waters.  Your situation may be different.  KNOWLEDGE IS POWER!

7.  What other uses are allowed on lands within the project boundary?

Licensees may, with Commission approval, authorize specific uses and occupancies of the project reservoir shoreline that are not related to hydroelectric power production or other project purposes (non-project uses). The uses also impact the reservoir shoreline. Examples of non-project uses include, but are not limited to: commercial marinas, private residential boats docks and marinas,; shoreline erosion control structures; water withdrawal facilities; certain recreation facilities; utility lines; access roads; bridge crossings; and, significant dredging activities.

CURB Commentary ... 

Depending upon your situation some or all of these uses are your property rights.