5.0 Non-Project Uses of Land and Waters
Non-Project Uses of Project Lands and Waters
Under Standard Article 5 of any license issued by FERC, PG&E must acquire and retain sufficient control over all property and/or rights necessary or appropriate to construct, operate, and maintain a project, and may not dispose of interests in project property without prior FERC approval, except as specifically permitted under the license. PG&E may receive requests from neighboring landowners, government agencies, or private organizations to use project land for a variety of purposes unrelated to operating the project (i.e., non-project uses).
A non-project use of project lands is a third-party use and occupancy of project property authorized by PG&E through the conveyance of a specific interest in project lands and waters. These uses may include, but are not limited to, land for boat docks, marinas, bridges, pipelines, water withdrawals, and utility lines. To provide PG&E with flexibility in responding to such requests, most project licenses contain a condition called a standard land use article (see example article??). This article allows PG&E to convey interests in project lands and waters through leases, rights-of-way, or fee title conveyances for certain non-project uses without prior FERC approval.
Conveyances allowed under the standard land use article must be consistent with the scenic, recreational, and other environmental values of the project. In addition, the entity requesting the conveyance must fulfill specific requirements before PG&E can convey an interest in project lands or waters. The requirements are based on the characteristics of the proposed use and the type of conveyance. PG&E must also consult with the appropriate federal and state agencies to ensure that the proposed use is compatible with the project’s recreation plan and resources, and that the instrument of conveyance includes appropriate covenants to protect the scenic, recreational, and other environmental values.
The level of FERC approval needed increases with the scale of the proposed non-project use and is detailed in the article. If a proposed use does not meet the criteria of the standard land use article, then PG&E must obtain FERC approval prior to issuing the conveyance. PG&E can request FERC approval by filing an application for a non-project use of project lands or waters. FERC treats an application for non-project use of project lands or waters as a request for an amendment of the project license. Non-project use amendment applications should include descriptions of the proposed use and type of conveyance, the affected environment, and the anticipated effects on the affected environment, as well as documentation of consultation with resource agencies and interested parties, including PG&E’s responses to any comments and recommendations. See this link for a detailed description of the suggested contents of an application for amendment of license for a non-project use and occupancy of project lands and waters.
Once filed, FERC will review PG&E’s application and may request additional information. FERC will determine whether a public notice on the application is needed and if an environmental assessment is warranted. FERC determines whether to prepare an environmental assessment on a case-by-case basis in accordance with its regulations at 18 CFR 380. Based on the results of FERC’s technical and environmental analysis, including a review of the license requirements, comment letters, and other information in FERC’s record, FERC may approve, modify (approve with conditions), or deny an application for a non-project use.
PG&E Enforcement of Non-Project Uses of Land and Waters
Just as FERC must ensure that PG&E meets the requirements of its license, PG&E must ensure that any authorized non-project use is constructed and operated in substantial conformity with the approved application. FERC encourages PG&E to develop and implement plans or programs to supervise and control authorized uses of project lands. When a non-project use substantially differs from the approved application, or begins to adversely affect project purposes, PG&E must take appropriate enforcement actions to bring the non-project use into compliance. PG&E may require that facilities be modified to conform to the approved application. If PG&E agrees that changes are needed to the approved site, it may file with FERC an application seeking approval of the proposed changes. Conflicts involving non-project uses are best resolved among PG&E, the non-project use holder (i.e., the third-party), and any interested stakeholders. However, FERC may become involved in PG&E’s administration of project lands and waters when such administration fails to ensure compliance with license requirements and project purposes.
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