If Santee Cooper is Sold: What Happens to the Lakes?

From Scott Carlberg

Rumors can sweep through communities when change is imminent. With a possible sale of Santee Cooper there are rumors about the demise of its lakes.

Those fearing the worst can breathe easy. Lakes are a protected, long-term asset for South Carolina, and lakes used to make electricity – like Marion and Moultrie – are highly  regulated at the national level. Here are facts about lake regulation from the Federal Energy Regulatory Commission (FERC).

Question: Are there federal regulations to protect the lakes that utilities use for hydropower?

Answer: Yes. A staff report of FERC describes hydropower – electricity made by lakes or other water sources — and how FERC oversees the lakes for commercial and public use.  (The report is directly quoted in many answers below.)

Question: What are some of the laws that regulate lakes?

Answer: FERC names the Federal Power Act, Rivers and Harbors Act, U.S. Bureau of Reclamation Statutes, National Environmental Policy Act, Clean Water Act, Endangered Species Act, Fish and Wildlife Coordination Act, National Historic Preservation Act, Coastal Zone Management Act,  Magnuson-Stevens Fishery Conservation and Management Act, Marine Mammal Protection Act, Wild and Scenic Rivers Act. (pages 17-23) 

Question: What happens to lakes when a utility with federally regulated lakes changes hands?

Answer: The short answer – the new owner must follow the same rules as the old owner.  As a media representative of FERC said to ECC, “Generally speaking, when ownership changes occur with hydro licenses issued by FERC, a license transfer application is filed with us to transfer the license to the new owner.  To transfer a license, the licensee (transferor) and designated transferee must jointly or severally file an application for approval with the Commission. When a transfer occurs, the new licensee must comply with the terms and conditions of the existing license. (bold text from the representative)

Question: If a utility is sold, how does FERC get involved with a transfer of lake licenses?

Answer: “License transition meetings with new licensees and Commission staff allow staff to review with the licensee the requirements of the license and what is expected of the licensee during the license term.” (p. 42)

Question: What does FERC say about public uses of the lakes, like recreation?

Answer: “The Commission’s policy is to seek development of the recreational resources of all projects, consistent with the needs of the project area and the primary purposes of the project. …Commission-approved recreation facilities may be required by the project license, an approved recreation plan or recreation plan amendment, or any other requirements that address the provision of recreation at the project (e.g., a water quality certificate).” (p. 43)

Question: How is public input involved in lakes and their management?

Answer: “Outreach activities with licensees and stakeholders are an important opportunity to hear all applicable views and opinions, educate parties about the licensing process and all it entails, and identify unforeseen problems. This may include evaluation of projects on site with the licensee and other stakeholders, or participation by Commission staff in both industry and environmental conferences and workshops that allow both industry and environmental (agency) stakeholders to gain a better understanding of the Commission’s regulatory program. One of the most important periods for public and other stakeholder involvement in Commission regulatory activities is during the initial and subsequent licensing of a hydroelectric project.” (p. 54)

Question: What kinds of responsibilities does a utility licensee have?

Answer: “Licensees have a responsibility to ensure that the reservoir shorelines within their project boundaries are managed in a manner that is consistent with project purposes, license requirements, and operations. Project purposes may include operation and maintenance, flowage, public recreation, public access, shoreline control, and the protection of environmental resources. Additionally, licensees must have sufficient property rights to manage project lands to protect and maintain project purposes.” (p. 43)

Shoreline Management – from FERC

Question: What document does a utility use to manage a lake?

Answer: “A comprehensive shoreline management plan (SMP), can assist a licensee in meeting its responsibilities throughout the term of its license and in managing the multiple resources and uses of the project’s shorelines in a manner that is consistent with license requirements and project purposes, and with the needs of the public. SMPs are best developed during project licensing, but circumstances may arise during the term of the license that would require development of an SMP. The Commission expects all licensees developing SMPs to involve the public and allow for agency consultation, review, and comment.” (p. 43)

FERC’s Guidance to Shoreline Management shows the strict discipline of lake management. In an earlier energy blog ECC noted a few SMPs:

Question: Is federal regulation over power-producing lakes something new?

Answer: “Hydropower regulation, the oldest area of the Commission’s jurisdiction, began with the Federal Power Commission’s regulation of non-federal hydroelectric generation in 1920. Under Part I of the Federal Power Act (FPA), the Commission’s responsibilities include authorizing the construction of projects and overseeing their operation and safety.” (p. 1)

In summary, do major changes in lakes, or fast changes, or changes not in the public interest happen when a utility changes hands? No.