January 13, 2022
FEDERAL ENERGY REGULATORY COMMISSION Washington, D. C. 20426
Subject: Allegations regarding shoreline management and buffer zone enforcement at Harbour Watch subdivision – Article 30
Dear Ms. Griffin:
This concerns our investigation into concerns raised by residents of the Harbour Watch subdivision regarding your efforts to enforce buffer zone provisions of the Saluda Hydroelectric Project No. 516 license1 and the approved shoreline management plan (SMP).2 The residents of the Harbour Watch subdivision allege that Dominion Energy South Carolina, Inc. (DESC), is requiring property owners adjacent to the 75-foot buffer owned by DESC to remove certain types of access paths, fire pits, gazebos, lawns, and other encroachments from the buffer zone. Most of the adjacent property owners object to DESC’s request that they remove of these structures, which according to the adjacent property owners, were allowed by the previous operator, South Carolina Electric & Gas
1 Order Issuing New License (Major) (27 FERC ¶ 61,332), issued June 1, 1984.
2 Order Amending Land Use and Shoreline Management Plan (56 FERC
¶ 62,194), issued September 17, 1991, Order Approving Shoreline Management Plan (107 FERC ¶ 62,273), issued June 23, 2004, and Order Clarifying and Modifying Order and Denying Rehearing (109 FERC ¶ 61,083), issued October 28, 2004. The
June 23, 2004 Order suspended the filing of additional updates to the SMP due to the pending relicensing of the project.
Document Accession #: 20220113-3003 Filed Date: 01/13/2022 Project No. 516-511 - 2 - (SCE&G).3 As discussed below, we find you are operating in compliance with the provisions of the approved SMP and your project license and taking the necessary steps to ensure your property rights are protected. Background Shoreline development adjacent to the project has been a concern for many years, especially as it relates to environmental resources. Due to development pressures around Lake Murray, the Commission first required SCE&G to prepare an SMP for the project, which was approved by the Commission in the 1984 project license. The license required the SMP to be updated every five years and the last update was approved in the 2004 order. The 2004 order suspended the requirement to update the SMP due to the beginning of the relicensing process anticipated to begin in 2005. Due to the complexity of issues raised in the 2004 update, SCE&G determined that a revised SMP addressing the issues discussed in the order would be filed with the relicense application. In 2009, a revised SMP was included in the relicense application (proposed 2009 SMP) and is pending before the Commission.
We note the proposed off-license Lake Murray Shoreline Management Handbook and Permitting Guidelines (Permitting Guidelines) included in Appendix B-2 of the 2009 settlement agreement was filed as part of your pending license application. We also note that provisions included in Section 7.13 of the proposed 2009 Permitting Guidelines state that access paths must consist of approved materials such as: woodchips, mulch, pine straw, pervious concrete with tinted color, fieldstone, river stone, and native grasses, which is less restrictive than the notice provided in your letter to the adjacent property owners at Harbour Watch subdivision and has caused confusion to residents who have accessed the Permitting Guidelines document. Under the updated SMP approved by the 2004 order, you are required to manage the project’s shoreline in a manner consistent with project purposes and license requirements of the current license. The updated SMP approved by the 2004 order and the 2007 Buffer Zone and Riparian Management Plan4 (required by the 2004 order) address specific issues related to the 75-foot vegetated buffer zone, including maintaining the buffer zone in a natural state, limiting vegetation removal (brushing) to a one time 3 Notice of name change, filed April 30, 2019, indicating a change of corporate name of the licensee. The licensee has indicated that, as a result of this corporate name change, some staffing changes occurred regarding the project. 4 Order Modifying and Approving Buffer Zone and Riparian Management Plan (120 FERC ¶ 62,105), issued August 9, 2007.
Document Accession #: 20220113-3003 Filed Date: 01/13/2022 Project No. 516-511 - 3 - initial clean-up, allowing only access paths to boat docks and a path along the shoreline for public access, and prohibiting adjacent property owners from privatizing the buffer zone by extending yards or encroachments within the buffer zone. The updated SMP contains specific enforcement provisions that would allow you to cancel any dock permit issued to an adjacent property owner, if necessary, to enforce compliance of the permit.
Our November 1, 2021 letter In our November 1, 2021 letter, we requested you provide information regarding: (1) what actions you have taken related to the Harbour Watch subdivision and whether these actions are specific to that development or will your actions apply to all properties adjacent to buffer zones at the project; (2) specific reasons for taking the current actions to remove encroachments, including any of your license requirements and obligations and the need to rescind any previous approvals; (3) a description of the location of the buffer zones involved with the Harbour Watch subdivision, in relation to the project boundary, and what rights Dominion Energy South Carolina, Inc. or others have over such lands; (4) an explanation regarding the conflicting information on prohibited structures/activities shown in the buffer zone notice you sent on September 22, 2021 and the Permitting Guidelines available to the public on your website; (5) whether you are considering any accommodations to individuals with mobility impairments; and (6) any other information you feel may be relevant to the actions you are taking concerning the adjacent properties in the Harbour Watch subdivision, including any inconsistencies between the approved 2004 SMP and the proposed 2009 SMP that may relate to oversight of the buffer zone associated with the Harbour Watch subdivision.
Your December 2, 2021 response letter In your December 2 letter, you state that the current efforts to enforce buffer zone and SMP provisions at Lake Murray are not specific and isolated to Harbour Watch subdivision. You indicate that you regularly inspect all buffer zones surrounding Lake Murray through the course of normal management and on a rolling 5-year buffer property line painting and signing program and your goal is to consistently enforce buffer zone regulations and address any violations discovered during your ongoing inspections. Your primary reason for taking the current action regarding encroachments at Harbour Watch subdivision is to stop the privatization and/or excessive clearing of the DESC-owned buffer and minimize any environmental impacts which may have resulted from these encroachments. You further indicate the approved SMP prohibits privatization of the buffer zone and that no lease agreements or permits were issued for installation of the buffer zone violations found at the Harbour Watch subdivision.
Document Accession #: 20220113-3003 Filed Date: 01/13/2022 Project No. 516-511 - 4 - You state that DESC owns the buffer zones adjacent to the Harbour Watch subdivision in fee and controls the activity within the buffer through a permitting program and annual inspection process. No permanent land rights are granted back to adjacent property owners regarding installation of unpermitted features within the DESC- owned buffer. You also acknowledge that some conflicting language exists between the approved 2004 updated SMP and DESC’s current permitting guidelines and those found in the pending 2009 proposed SMP and pending permitting guidelines that are part of the pending relicensing proceeding. You indicate that your current enforcement efforts are consistent with your current license and approved plans. You state that you are considering updating the documents in the pending licensing agreement to restrict the use of “hardscape” materials within the buffer zone as you have determined that such materials appear to encourage additional buffer disturbance and are generally detrimental to the environmental integrity of the buffer zone. You state DESC is willing to discuss mobility issues for physically challenged property owners adjacent to buffer zones on as case by case basis as they are brought to your attention. DESC’s goal is to attempt to provide accommodation through administrative measures and various softscape features such as graded and mulched pathways while still not allowing for the perceived privatization of the buffer. You indicate all such accommodations are granted in writing by DESC through a permit and are not at the discretion of the adjacent property owner. Finally, you provide photographs of paved walkways and patios, walkway edging, gazebos, lighting, and permanent firepits with low walls on lands owned by DESC, which illustrate the privatization of buffer zone lands by adjacent property owners in Harbour Watch subdivision in the vicinity of their boat docks.
Discussion and Conclusion
One of the purposes of the your SMP is to provide a comprehensive management tool for managing requests for shoreline activities within the project boundary in a manner consistent with project purposes. Your 2004 updated SMP includes procedures, permitting processes, monitoring and enforcement provisions, and criteria used to regulate allowable shoreline uses in a manner that balances shoreline development with project resource needs, including the protection of buffer zone areas around the reservoir. As discussed in the environmental assessment prepared in support of the 2004 order approving the SMP update, clearing groundcover, brush, and small trees in the buffer zone reduces the habitat value of the riparian zone and could expose bare soil to uncontrolled runoff and possible erosion and transportation of sediment into the reservoir. Maintaining a vegetative buffer provides effective environmental protection for habitat and water quality.
Document Accession #: 20220113-3003 Filed Date: 01/13/2022 Project No. 516-511 - 5 - Your 2004 updated SMP sets forth processes for you to permit shoreline uses on property you own within the project boundary, monitor such uses, and take enforcement actions when such uses violate permit conditions. Further, under Article 30 of your project license, DESC has the responsibility to supervise and control the use of project lands for which it grants permission, and if a permitted use violates any condition it imposed for protection the project's environmental values, it must take any lawful action necessary to correct the violation.
While many of the buffer zone encroachments identified at the Harbour Watch subdivision have been in existence for more than five years, we note that DESC assumed management of the project and its shoreline from SCE&G in 2019. The discovery of the encroachments found in the buffer zone is the result of steps DESC is taking with respect to inspection and tracking practices to ensure only permitted uses are allowed on DESC- owned lands within the project boundary.
Based upon the information and photographs you provided in your filing showing the development and privatization of the buffer zone adjacent to the Harbour Watch subdivision, we concur with your efforts to enforce the provisions of your approved SMP at all of the buffer zone areas owned by DESC around the project. In order to protect the scenic, recreational, and environmental values of the project, enforcement of the approved SMP is both necessary and a requirement of your license. We find that you are complying with those requirements, as well as the provisions of the approved 2007 Buffer Zone and Riparian Management Plan. Additionally, we find you are operating in compliance with the provisions of the approved SMP and your project license and taking the necessary steps to ensure your property rights are protected.
We strongly encourage you to continue to work with adjacent property owners around the reservoir through education and information programs to convey clearly and consistently what is allowable in DESC-owned buffer zones and the important functions the required buffer zone areas provide. This will enable the adjacent property owners to apply for permits for access through the buffer zone and understand what uses are allowed.
Document Accession #: 20220113-3003 Filed Date: 01/13/2022 Project No. 516-511 Thank you for your cooperation. If you have any questions regarding this matter, please contact Mary Karwoski at (678) 245-3027 or mary.karwoski@ferc.gov. Sincerely, Robert J. Fletcher Land Resources Branch Division of Hydropower Administration and Compliance