3.1 Shoreline Protection Through the FERC Licensing Process

Currently hydropower project owners are required to file a license application with FERC a minimum of two years prior to the expiration of the license for existing facilities or prior to construction of a new facility. A major component of the application is Exhibit E (described in Section 2.2.d) in which the applicant includes information on the environmental impacts of the project. The information contained in this submittal and other parts of the application is used by FERC when issuing its EA or EIS. There are many steps along this process in which the public can become involved and affect the outcome of the license. (See the Hydropower Reform Coalition Relicensing Toolkit for more detail.)

 

3.1.a Motion to Intervene and Additional Information Requests

There are several steps in the licensing process that allow involvement by other federal and state agencies, recreation and conservation organizations, and members of the general public. However it is important that interested parties first file a motion to intervene pursuant to 18 CFR 385.214 in order to become a formal party to the license proceedings and to receive all filings. An intervener may file comments, recommendations, and suggested terms and conditions for the license. A motion to intervene also informs the project owner that you are an interested party and opens the door for involvement in future settlement agreements and scoping sessions. An intervenor may also file an Additional Information Request (AIR) which can be a very powerful tool to remedy data errors or omissions. Interested parties may submit an AIR, which if granted by FERC, can require the licensee to provide additional information on how project lands will be protected and threats or impacts mitigated. The AIR, however, must be substantiated with specific reasons why the additional information is necessary, how the AIR relates to the impacts of the project, how the results of any study will be used, and how the project and the results of your information request affect you.

3.1.b License Article Conditions for Protection, Mitigation, and Enhancement

A final license for a hydropower project will include license articles with conditions outlining the requirements that the licensee must comply with during the term of the license. FERC has developed many of the articles in a standard format to be used where appropriate in any license. License articles may also require recommendations from other state and federal agencies and organizations who have filed a motion to intervene. FERC makes the final decision on which articles are included in the final license. The following is a list of requirements relating to shoreline and riparian lands protection that have been included in license articles for hydropower projects:

• The licensee is required to control development through easements within a shoreline buffer zone around the impoundment.
• The licensee is required to replace or offset wildlife or wetland habitat that is adversely affected by the project.
• The licensee is required to protect the habitat of an endangered or threatened species found on project lands.
• The licensee is required to develop and implement a shoreline management plan.

3.1.c License Article Conditions for Studies and Monitoring

Sometimes effects that a hydropower project will have on development, species habitat, and increase in recreation are unknown at the time the license is issued. Therefore, FERC will frequently include conditions in a license that require the licensee to conduct studies and or monitoring and submit results to FERC annually or some other time period. It is far more desirable to have these issues completed when the new license is issued, but these conditions can be an effective tool for land protection by-

• Requiring the project owner to more accurately determine project impacts on a particular species and its habitat which may result in additional land protection; and
• Showing the gradual impacts of increased shoreline development over time such as degradation in water quality and recreationist's experience.

3.1.d Other Tools, Guidelines, and Requirements

Management plans of other federal, local, and state agencies can provide additional requirements, guidelines, and recommendations that may be included in the project's license. Comprehensive Plans that outline land protection needs, particularly if specific to the hydro project of concern, can be a valuable tool to 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. The latest version of this list is entitled Revised List of Comprehensive Management Plans, April 2008 and is available online at http://www.ferc.gov/industries/hydropower/gen-info/licensing/complan.pdf

Examples of plans that FERC may be required to consider are:

• 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

3.2 Settlement Agreements

Thousands of acres of riparian forests, wetlands, and shoreline have been protected through the negotiated process of settlement agreements. In this process, a hydropower project owner who plans to obtain a new license in the near future engages all interested parties and stakeholders in negotiations prior to filing a license application with FERC. The parties work together to determine terms and conditions that will be put into the license or actions that the owner will take to protect lands and shoreline. No party will likely achieve 100% of their objectives in settlement, but it is frequently the best forum to work out an appropriate balance with the Licensee rather than all parties waiting for the FERC staff to determine the "appropriate balance." Innovation can also occur, such as proposing longer license terms in return for large scale land protection or other mitigation.

Settlement agreements can be negotiated outside of the FERC licensing process or as part of FERC's alternative licensing process using procedures prescribed under 18 CFR 4.34(i). Typically, a settlement agreement is written to include all agreed upon terms and conditions and signed by all the involved parties. The settlement agreement is then submitted to FERC as part of the license application and part or all of it may be incorporated into the license. FERC may "approve" an entire settlement agreement but will only incorporate into the license those terms and conditions that are within its jurisdiction. Refer to 18 CFR 385.602 for procedural regulations regarding settlement agreements.

The benefits of settlement agreements include more creative methods of protection, more efficient licensing process, and less post-license appeals. Stakeholders have the opportunity to be directly involved in negotiations and are part of the consensus building required to reach a settlement. Try to make settlement agreement terms enforceable under FERC's authority. If aspects of the settlement agreement are outside of FERC's jurisdiction, then the only legal recourse available to stakeholders may be through the state court in the event that any of the parties fail to comply with the agreement.2

The types of shoreline protection that have been achieved and licensed through settlement agreements include:

• Determination of the project boundary prior to the licensing process which enables all parties to know what lands are under the control of the project owner;
• Designation of adequate widths for riverine protection corridors and shoreline buffer zones;
• Determination of land offsets for wetlands and other areas adversely impacted by the project;

2 Many federal natural resource agencies are concerned about such enforcement because of their inability to sue in state court.

• Establishment of funds to finance restoration or replacement of riparian lands and wetlands;
• Development of recreation, land, wildlife, or habitat management plans for areas and species impacted by the project;
• Acquisition of additional lands for shoreline protection;
• Development of conservation easements on project lands; and
• Determination of points of public access for recreation purposes.

3.2.a Term and Perpetual Conservation Easements

Settlement agreements often include conditions for establishing protective easements on lands affected by the hydropower project. This method of protecting lands involves the purchase of land or development rights and the establishment of conservation easements. The hydropower project owner will forgo specific rights to project lands it owns or acquires for this purpose to a qualified conservation recipient such as a public agency, conservation organization, or land trust. The hydropower project owner usually enters into the conservation easement voluntarily as a part of a settlement agreement. Monies to endow the easement holder for its future legal monitoring obligations are also a common part of such arrangements.

An easement may be written to restrict development to the degree necessary to protect the significant resources of the property. For shoreline protection, conservation easements typically prohibit commercial and industrial development and limit or prohibit residential development. Building and roadway setbacks may also be established. Requirements for and limitations on recreational development may also be included.

Perpetual easements are written in perpetuity and are passed on to all subsequent owners of the property. Term easements are allowed only in some states and are written to last a specified period of years. The agency or organization that has been granted the easement is responsible for seeing that the conditions of the easement are met. This often includes monitoring the property on a periodic basis and maintaining written records of the visits. The grantee has the legal responsibility to require the property owner to rectify any violations of the easement. Clearly written, legally binding perpetual conservation easements that specifically outline allowable activities and uses are one of the most effective means of establishing long term land protection, especially when developed through a settlement agreement in which all stakeholders have been involved.

Specific elements of conservation easements that aid in the protection of riparian lands include:

• Preventing development such as large commercial marinas or residential subdivisions around impoundment shorelines;
• Preventing human access to areas of nesting sites, wintering and feeding grounds, migration corridors, and other critical species habitat;
• Prescribing timber harvesting practices near impoundments, rivers, and wetlands; and
• Initiating land management practices that are conducive to particular wildlife and plant species.

3.2.b Trust Funds

It is not always possible to foresee all of the impacts that a particular hydropower project will have on project lands surrounding the impoundment or along river reaches. Many of these impacts may require mitigation or the purchase of additional lands for restoration or replacement. A hydropower project owner may, voluntarily or as the result of a settlement agreement, establish a trust fund for a specified purpose such as land protection to compensate for wetland or wildlife impacts caused by the project and not easily mitigated on-site. The owner may make a lump sum deposit or annual deposits into the fund, which is typically managed by a council made up of the owner and other interested parties. Disbursements from trust funds may be used to provide shoreline protection by:

• Purchasing additional lands for protection and mitigation; and/or
• Financing organizations or agencies to administer conservation easements.

3.2.c Off-site Land Exchanges and Purchases

A settlement agreement may include terms for the protection of lands not included within the project boundary. Off-site land protection may occur when negative impacts on project lands can not be mitigated on-site. The hydropower project owner may agree to protect other lands under its ownership but not associated with the project or the owner may agree to purchase additional lands not associated with the project. This can be an effective means of land protection as long as the lands being exchanged can provide adequate mitigation for associated project impacts. For example, if the project negatively impacts elk wintering grounds within the project boundary, then the project owner may choose to purchase or exchange off-site lands for mitigation. These off-site lands may be exchanged as long as they will benefit the same elk herd. Likewise, wetlands that are destroyed or degraded by project operations could be compensated for by protecting off-site wetlands comprised of similar species of flora and fauna expected to be found on the project lands.