August 15, 2022
Kimberly D. Bose
Federal Energy Regulatory Commission
ATTN: OEP/Division of Hydropower Administration and Compliance
888 First Street, N. E.
Washington, D. C. 20426
Subject: Allegation of Non-compliance regarding enforcing the Buffer Zone/Riparian Management Plan approved by the Commission in 2007. Project 516
1-Lake Murray Watch is a conservation group that was formed over 20 years ago to promote the protection and enhancement of the project’s scenic, recreational and environmental resources.
2-The purpose of this filing is to inform the FERC of Lake Murray Watch’s concerns about what we believe is Dominion Energy’s sub-par efforts to restore buffer zones at various locations on Lake Murray, Project 516 as required by FERC order dtd. 2007, Buffer Zone and Riparian Management Plan.
3- In April of 2022, Lake Watch and Mr. Jim Walters, a forestry consultant, inspected the buffer zone at the Harbour Watch development. Mr. Walters’ report is attached below. Mr. Walters also reviewed the Buffer Zone and Riparian Plan Management Plan approved in 2007.
4-The Saluda Hydro Electric Project 516 was built for the public good. Lake Murray and the lands within the project boundary should be managed to protect public values. Dominion’s management of public resources at the project is a public matter. Lake Watch along with state and federal agencies and other conservation groups represent the public’s interest in protecting those values.
5-In 1984, because of intense private development along the lake’s lower shoreline, FERC ordered SCE&G to establish and maintain a 75’ natural buffer zone on all future development shorelines. Article 30 of the license requires the licensee to keep in the project enough land to protect the scenic, recreational and environmental resources. For the most part, from 1984 to 2019, SCE&G allowed limited brushing of plants and trees smaller than 3 inches in diameter within the buffer. This happened in spite of a FERC order in 2000 and later in 2007 which disallowed (except for a pathway to docks) clearing within 50’ of the 360’ contour and below.
6- In 2000, Lake Watch, the Lake Murray Association, other NGOs and agencies filed complaints with the FERC, alleging SCE&G allowed the developer at Willows End (now Harbour Watch) to clear and grade, using heavy equipment, almost 2 ½ miles of shoreline including most of the black willows the development was named for. The FERC found SCE&G in non-compliance with the shoreline plan for not properly monitoring the clearing. The FERC noted that the non-compliance was minor and that no enforcement action or penalties would be recommended at that time. The FERC indicated the violations would be made a part of the compliance history and would be considered in the course of review of any future violations. The FERC also ordered SCE&G to develop a buffer zone management and restoration plan specifically for Harbour Watch. This plan was submitted to the FERC on Jan. 28, 2000. The plan called for the establishment of an environmental stewardship committee to ensure that parks nature trails and buffer areas were protected. For some reason that committee was dissolved and the licensee resumed full responsibility of monitoring and protecting Harbour Watch buffers.
7- In 2004, during the SMP update, the FERC required SCE&G to establish and protect a 50’ buffer around ESAs and a 25’ non-disturbance zone around the remaining buffer locations. The FERC also required SCE&G to develop a plan to restore locations that didn’t meet the minimum criteria to protect public values. It appears that SCE&G failed to properly monitor these buffers, allowing many homeowners to clear excessively and privatize with manicured lawns and other permanent structures.
8- In 2006 the Buffer Zone and Riparian Management Plan was developed by SCE&G’s consultant, the National Resource Conservation Service (NRCS). FERC approved the plan in 2007 in spite of objections from agencies that the plan was inadequate. SCE&G made it clear that
“the intention of the plan was to plant forbs, grasses, shrubs and trees as needed, and to allow natural succession to continue.”
SCE&G emphasized that this would be done
“regardless of whether a disturbance was man-made or natural, intentional or unintentional, the company intended to implement the plan.”
Regarding how to determine an appropriate re-vegetation plan, SCE&G stated,
“When at all possible, the re-vegetation plan for a particular location should be based on a reference condition. This may be information of the pre-disturbance at the location, in terms of species, arrangements and density or, information on such factors obtained by assessing a nearby location under the same setting, but with similar attributes(slope, aspect, soil, etc.”).
9-In spite of all the pro-enviro postering, SCE&G failed to implement the plan, for almost 12 years, allowing many homeowners to clear buffers excessively and privatize with manicured lawns and other permanent structures. But by letter dated September 22, 2021, Dominion began the process of restoring and de-privatizing by notifying lakefront property owners at the Harbour Watch of violations of the allowable use of the 75’ buffer zone. Violations included hardscaped walking paths, irrigation systems, decks, patios and firepits. DESC required violations to be corrected within 120 days of the letter.
10- As a result of the letter, numerous homeowners filed complaints with the Commission objecting to DESC’s order to correct privatization issues. In response to homeowner protest, by letter dated November 1, 2021, the Commission required DESC to explain its actions. On Dec. 2, 2021 DESC filed its response justifying its actions citing requirements in the 2007 plan. By letter dated January 13, 2022, The Commission found DESC to be in compliance with the 2007 Buffer Zone and Riparian Management Plan.
11- Lake Watch disagrees with the Commission’s findings that the licensee is in compliance. The 2007 order which supersedes the 2004 order is being ignored at most buffer zone locations including Harbour Watch. As it relates to restoring buffers at Harbour Watch and other locations, Lake Watch believes that Dominion’s efforts fall far short of the criteria spelled out in the 2007 Plan. Specifically, based on our consultant’s findings, see report, and the recommendations of the NRCS, Lake Watch’s complaint is:
a-DESC is allowing property owners adjacent to the buffer to continue to maintain manicured lawns in the 50’ non-disturbed area. The 2007 plan does not allow lawns in the first 50’ of the buffer. Manicured lawns imply private ownership and discourages public use of the buffers, especially the off water property owners.
b-DESC is allowing property owner’s to remove leaf drop from trees. The Plan says leaves from leaf drop of trees should be left on the surface to provide ground cover and filtering. i.e. the first 50’of the 75’ buffer is a non- disturbance area.
c-DESC is not replacing lost undercover i.e. forbs, shrubs, grasses and small trees as recommended by the their consultant
d-DESC is only interested in planting shade trees at the minimum spacing with the hope that someday a closed canopy will occur. There’s no consideration for survival rates.
f-DESC’s re-planting efforts in 2020 appear to be a failure. From our view point Lake Watch found very few re-plants that have survived.
12- It is time environmental issues are taken seriously. The band aid approach is not working. Lake Watch believes the priority going forward, must be protecting the shoreline as required by Art. 30 and the 2007 Buffer Zone and Riparian Management Plan. A more restrictive plan developed in 2009, awaits implementation as part of the 2009 relicense plan. Allowing property owners to maintain manicured lawns outside approved areas implies private ownership in an area that is open to the public for passive recreation.( Note-Dominion is requiring back property owners to remove hardscapes because they imply private owner in an area which allows public access.) Additionally manicured lawns do not provide the environmental benefits that a natural forest floor provides. Most lawns are resource-intensive monocultures of invasive plants than can choke out native vegetation including recent tree plantings. Allowing continued maintenance of lawns sets a bad precedent for restoration efforts in other buffer areas where property owners will expect equal treatment. It is doubtful that planting 3’ tall trees every 15 to 20 ft. in turf areas will eventually result in a closed canopy that will shade out lawns. It is more likely the turf grass will choke out the small trees.
Our consultant strongly agrees with the NRCS
13- We believe there is a simple solution that will remove lawns, and does not require drastic measures such as applying herbicides or using equipment to remove the lawns. It would also protect against erosion and would take only a few seasons to see results vs. waiting decades for new plantings to possibility shade out the lawns. Homeowners will still be allowed to maintain lawn turf in the upper 25’ of the 75’ buffer.
14- We propose that DESC do what SCE&G has done in the past. And that is to inform homeowners who have encroached into the buffer with lawns to refrain from mowing in the summer, and refrain from clearing leaf drops in the winter. This happened at Osprey Point, Shelter Bay and Waterfront Row in Newberry County in 2002. Agencies inspected these buffers after receiving complaints about excessive clearing and privatization. Both DNR and USFWS filed reports with the FERC noting numerous encroachments, and recommended the encroachments including lawns be removed. SCE&G responded by informing homeowners that lawns are not allowed in the buffer, and to cease mowing and clearing of winter leaf drops. Results were apparent within a few years, proving this to be an effective, low impact way to eliminate lawn encroachments, and to allow leaf falls to create a natural forest floor.
15- In 2020, Dominion hired a landscaping contractor to re-store buffers at nine locations that were approved in 2000, including the Moore, Byrum, Whiteside and Hamm’s Landing sites. This action was taken after complaints were filed with the FERC by Lake Watch, the Lake Murray Association, the SC Wildlife Federation, and other NGOs regarding excessive clearing. Re-plantings at most of these locations appeared to meet the minimum criteria in the Plan. On the other hand, restoration efforts performed by DESC staff in 2020 at Harbour Watch, Osprey Point, Shelter Bay and other locations, we believe, falls far short of meeting the Plan’s criteria.
16- It is ironic that Lake Watch finds itself in the same position it was over two decades ago, which is fighting to protect buffers/public resources at the Harbour Watch(Willows End), Osprey Point, Shelter Bay and others.
17- FERC approved the development at Harbour Watch, and other locations, with the understanding that the licensee would establish, maintain and protect a natural 75’ buffer around those shorelines. This has not happened. The vast majority of buffers on Lake Murray have been privatized over the years. The licensee has failed to closely monitored buffers and has failed to implement the minimum standards set forth in the 2007 Plan which by the way was recommended by SCE&G’s expert, NRSC. Lake Watch’s consultant made it very clear that, “The first step in restoring a natural shoreline is to stop all mowing and removal of live plants from the 75-foot buffer zone. This will allow succession of natural vegetation to begin.”
18- As manager of the lake, Dominion needs to step up to the plate, and do what it takes to protect the overall public interest by enforcing the restoration and de-privatization order issued by the FERC , which if enforced will benefit tens of thousands of lake users. And if Dominion is not going to protect public resources, as required by Article 30, then the remaining future development shorelines should be transferred to the forest and game management classification which would ensure that the these shorelines will remain undisturbed and protected for future generations to enjoy.
Lake Murray Watch
Exhibit- 1 Natural shoreline across cove from Harbour Watch to be used as a reference for re-planting.
Exhibit 2 above. This is most common buffer at Harbour Watch. Missing understory.
Exhibit 3- The photo above is an example of a buffer which has good buffer qualities. i.e. no lawn grass, natural forest floor, and small shrubs and trees along the shoreline which helps protect scenic values.
Exhibit 4 above represents worst case scenario. Manicured lawn, understory missing that would protect scenic values (shrubs and small trees)
Exhibit 5- An example of re-growth when homeowner ceases mowing in the riparian zone. Compliance with the plan is obviously underway. Several black willows, button bushes and natural grasses have quickly rebound. The river burches, which were planted about 12 years are doing a good job blocking most of the view of the house.