CURB supporters asked to see the terms and conditions of APCO's original license.  The following table is a summary of APCO's original license issued by the Federal Power Commission on April 25, 1960. Thus the original license represents the conditions that existed between the company and the Federal Power Commission during this time period  The blue text below are those license articles that APCO later agreed to accept.  It was not until 17 February 1998 that APCO agreed to regulate non-project uses within the project.  APCO's claims that it has federal authority to require landowners to sign its Permits is an outright lie.

The reader should note that most Flowage Right and Easement Deeds were also negotiated during 1960.  Clearly APCO had no requirement under its original license to regulate uses and occupancies on lands it did not own and consequently did not issue permits or licences to shoreline property owners or attempt to regulate or limit shoreline owner's use of the easement.  Also note that a federal license and subsequent amendments or renewals cannot  alter property rights.  Property rights flow with the land title.  



Article No.

APCO’s ORIGINAL 1960 SMITH MOUNTAIN PROJECT NO. 2210 LICENSE ARTICLES

Source: Preliminary Application Document (PAD) Volume 1  November 2004

Amend 

Date

L-1

The entire project, as described in the order of the Commission, shall be subject to all the provisions, terms, and conditions of the license.

n/a

L-2

No substantial changes shall be made in the maps, plans, specifications, and statements described and designated as exhibits and approved by the Commission in its order as a part of the license, until such change shall have been approved by the Commission.

n/a

L-3

Project works shall be constructed in substantial conformity with the approved exhibits or as changed in accordance with the provisions of Article 2. Except when an emergency shall require for the protection of navigation, life, health, or property, no substantial alteration or addition not in conformity with the approved plans shall be made to any dam or other project works under the license without the prior approval of the Commission.

n/a

L-4

The construction, operation, and maintenance of the project and any work incident to additions or alterations shall be subject to the inspection and supervision of the Commission's Regional Engineer, in the region wherein the project is located, or of such other officer or agent as the Commission may designate.

n/a

L-5

Upon the completion of the project, or at such other time as the Commission may direct, the Licensee shall submit to the Commission for approval revised maps, plans, specifications, and statements insofar as necessary to show any divergence from or variations in the project area and project boundary.

n/a

L-6

For the purpose of determining the stage and flow of the stream or streams from which water is to be diverted for the operation of the project works, the amount of water held in and withdrawn from storage, and the effective head on the turbines, the Licensee shall install and thereafter maintain such gages and stream-gaging stations as the Commission may deem necessary and best adapted to the requirements; and shall provide for the required readings of such gages and for the adequate rating of such stations.

n/a

L-7

So far as is consistent with proper operation of the project, the Licensee shall allow the public free access, to a reasonable extent, to the project waters and adjacent project lands owned by the Licensee for purpose of full public utilization of such lands and waters for navigation and recreational purposes, including fishing and hunting, and shall allow to a reasonable extent for such purposes the construction of access roads, wharves, landings, and other facilities on its lands the occupancy of which may be subject to payment of rent to the Licensee in a reasonable amount. The Licensee may reserve from public access such portions of the project waters, adjacent lands, and project facilities as may be necessary for the protection of life, health, and property. The Licensee's consent to the construction of access roads, wharves, landing, and other facilities shall not without its express agreement place upon the Licensee any obligation to construct or maintain such facilities.

n/a

L-8

Insofar as any material is dredged or excavated in the prosecution of any work authorized under the license, or in the maintenance of the project, such material shall be removed and deposited so it will not interfere with navigation, and will be to the satisfaction of the U.S. Army Corps of Engineers. 

n/a

L-9

In the construction and maintenance of the project works, the Licensee shall place and maintain suitable structures and devices to reduce to a reasonable degree the liability of contact between its transmission lines, and telegraph, telephone, and other signal wires or power transmission lines constructed prior to its transmission lines and not owned by the Licensee, and shall also place and maintain suitable structures and devices to reduce to a reasonable degree the liability of any structures or wires falling and obstructing traffic and endangering life on highways, streets, or railroads.

n/a

L-10

Whenever the United States shall desire to construct, complete, or improve navigation facilities in connection with the project, the Licensee shall convey to the United States, free of cost, such of its lands and its rights-of-way and such right of passage through its dams or other structures, and permit such control of pools as may be required to complete and maintain such navigation facilities.

n/a

L-11

The Licensee shall furnish free of cost to the United States power for the operation and maintenance of navigation facilities at the voltage and frequency required.

n/a

L-12

The operation of any navigation facilities which may be constructed as part of or in connection with any dam or diversion structure constituting a part of the project works shall at all times be controlled by such reasonable rules and regulations in the interest of navigation, including the control of the level of the pool caused by such dam or diversion structure, as may be made from time to time by the Secretary of the Army.

n/a

L-13

The United States retains and safeguards the right to use water in such amount, to be determined by the Secretary of the Army, as may be necessary for the purposes of navigation on the navigable waterway affected; and the operations of the Licensee so far as they affect the use, storage, and discharge from storage of waters affected by the license, shall at all times be controlled by such reasonable rules and regulations as the Secretary of the Army may prescribe in the interest of navigation, and as the Commission may prescribe for the protection of life, health, and property, and in the interest of the fullest practicable conversion of such waters for power purposes and for other beneficial public uses, including recreational purposes.

n/a

L-14

The actual legitimate original cost of the original project and of any addition thereto or betterment thereof shall be determined by the Commission. 

n/a

L-15

After the first twenty (20) years of operation of the project under the license, six (6) percent per annum shall be the specified rate of return on the net investment in the project for determining surplus earnings of the project for the establishment and maintenance of amortization reserves, pursuant to Section 10(d) of the Act.

n/a

L-16

No lease of the project or part thereof whereby the lessee is granted the exclusive occupance, possession, or use of project works for purpose of generating, transmitting, or distributing power shall be made without the prior written approval of the Commission. The provisions of this article shall not apply to parts of the project or projects works which may be used by another jointly with the Licensee under a contract or agreement whereby the Licensee retains the occupancy, possession and control of the property so used and receives adequate consideration for such joint use, or to leases of land while not required for purposes of generating, transmitting, or distributing power, or to buildings or other property not built or used for said purposes, or to minor parts of the project or project works, the leasing of which will not interfere with the usefulness or efficient operation of the project by the Licensee for such purposes. 

n/a

L-17

The Licensee, its successors and assigns shall, during the period of the license, retain the possession of all project property covered by the license as issued or later amended, including the project area, the project works, and all franchises, easements, water rights, and rights of occupancy and use; and none of such properties necessary or useful to the project and to the development, transmission, and distribution of power therefrom will be voluntarily sold, transferred, abandoned, or otherwise disposed of without the approval of the Commission.

n/a

L-18

The terms and conditions set forth in this license shall not be construed as impairing any terms and conditions of the Federal Power Act which are not expressly set forth herein.

n/a

19

The Licensee shall construct, maintain and operate such protective devices and shall comply with such reasonable modifications of the project structures and operation in the interest of fish and wildlife resources, provided that such modifications shall be reasonably consistent with the primary purpose of the project, as may be prescribed hereafter by the Commission upon its own motion or upon recommendation of the Secretary of the Interior, or the Virginia Commission of Game and Inland Fisheries, after notice and opportunity for hearing and upon a finding based on substantial evidence that such modifications are necessary and desirable and consistent with provisions of the Act.

n/a

20

During the initial filling of the project reservoirs, the Licensee shall release sufficient flow consistent with the portion of Federal Kerr project watershed controlled by Project No. 2210 to permit the Kerr project to supply the minimum flows during the striped bass spawning season below the Kerr project which it could have done in the absence of Project No. 2210.

n/a

21

The Licensee shall, prior to flooding, clear all lands in the bottom margins of the reservoirs to be submerged so that no brush or trees protrude above an elevation of 5 feet below the minimum power pools. The Licensee shall dispose of all temporary structures, unused timber, slash, refuse, or inflammable material resulting from the clearing of lands or from construction of the project works; in addition, all trees along the margin of the reservoirs which may die from operation of the project shall be removed; and the clearing of the lands and the disposal of the material shall be done with due diligence and to the satisfaction of the authorized representative of the Commission.

n/a

22

The Licensee shall commence construction of the project within one year after the issuance of the license and shall complete the project by May 1, 1965.

n/a

23

The Licensee shall submit for Commission approval Exhibits F and K, prepared in accordance with the Commission's rules and regulations, within one year following the completion of the works.

n/a

24

The Licensee shall pay to the United States for the cost of administration of Part I of the Act, a reasonable annual charge as determined by the Commission in accordance with the provisions of its regulations.

n/a

25

The Commission reserves the right to determine at a later date what additional transmission and appurtenant facilities, if any, should be included in the license as part of the project works.

n/a

26

The Licensee shall submit revised Exhibit L drawings showing the final design of dam structures for the Lower Development, and the Licensee shall not commence construction until the Commission approves the exhibit.

n/a

27

At such time as the Commission may direct and to the extent that it is economically sound and in the interest to do so after notice and opportunity for hearing, the Licensee shall install an additional generating unit in the Upper Development.

n/a

28

In the interest of preventing or lowering harmful river stages downstream from the Lower Development the Licensee shall operate the project in accordance with an agreement to be entered into by the Licensee and the U.S. Corps of Engineers for the purpose of determining operating procedures during flood periods, and in accordance with the following principles:

(a). Controllable releases of water from the Upper Development reservoir shall be restricted when such restriction will be effective in preventing or lowering harmful river stages downstream; provided, however, that such restriction need not be such as to reduce the releases below those necessary to generate 2-million kilowatt hours per day at the Upper Development; and, additional energy may be generated at the Upper Development when required to meet power emergencies on the Appalachian System or the American Electric Power Company System of which the Licensee is a part.

(b). Whenever effective in preventing or lowering harmful high river stages at or above Altavista, Virginia, storage capacity in the Lower Development reservoir will be utilized to: (1) regulate water releases by the Upper Development turbines to the corresponding average 24-hour discharge; and (2) store water originating from the drainage area between the Upper and Lower development dams or discharged by the Upper Development spillway, utilizing the reservoir capacity as may be available from time to time in excess of that required for reregulation as described and not necessarily reduce the discharge of the turbines installed in the Lower Development.

n/a

29

Except as provided in Article 30, the Licensee shall release from the Lower Development a minimum average weekly flow of 650 cfs. These flows may be temporarily modified if required by operating emergencies beyond the control of the Licensee, and/or for short periods of time (up to 45 days) during drought and/or low flow conditions, upon mutual agreement between the Licensee and the VDEQ, in consultation with the VDGIF, following appropriate public input as determined by VDEQ. The Licensee shall notify the Commission no later than 10 days after each such incident.

19 May 2000

30

During the initial filling of the project reservoirs, the Licensee shall release sufficient flow consistent with the portion of Federal Kerr project watershed controlled by Project No. 2210 or take measures to assure the firm power capacity of the Kerr Project which would have been available in the absence of Project No. 2210.

n/a

31

The Licensee shall furnish the U.S. Army Corps of Engineers such information as being pertinent to the operating conditions at the project as may be necessary for forecasting flow downstream from the project:

n/a

32

The Licensee shall, for the protection of navigation, construct, maintain and operate at its own expense such lights and other signals on fixed project structures in or over navigable waters of the United States as may be directed by the Secretary of the Department in which the Coast Guard is operating.

n/a

33

The Licensee shall consult with the U.S. Fish and Wildlife Service and the Virginia Commission of Game and Inland Fisheries and on the basis of that consultation provide free public access to project waters and undertake measures for preserving and improving fish and wildlife resources of the project area, as may be prescribed hereafter by the Commission upon its own motion or upon recommendation of the Secretary of the Interior, or the Virginia Commission of Game and Inland Fisheries, after notice and opportunity for hearing.

n/a

34

The Licensee shall release for the Lower Development a minimum average daily (24 hour) flow of 60 cfs, measured at the Altavista, Virginia gaging station. During the striped bass spawning season, releases necessary to maintain a minimum average daily (24 hour) flow not to exceed 2,000 cfs measured at a point near Falling River, shall be provided during a 19 day period, as requested by the VDGIF five days prior to that need, not to exceed more than two Sundays nor more than two Mondays.

19 Apr 1976

35

The Licensee shall make available to the Smithsonian Institution, Washington, D.C., upon request to the Licensee and further direction of the Commission, not more than $2,000 for archeological surveys and $8,500 for archeological salvage tests and excavations.

 

36

The Licensee shall commence construction of Unit NO.3 at the Smith Mountain Development within one year of the date of this Order and complete construction by January 1, 1978.

3 Feb 1975

37

Licensee shall, prior to start of commercial operation of Unit No.3, file for approval by the Chief, Bureau of Power, an operating rule curve defining the pump operating limits of Unit No.3 with respect to tailwater elevation.

3 Feb 1975

38

Licensee shall make a structural analysis of the Unit No.3 penstock and the dam to assess the effect of vibrations that would be introduced by operation of the new unit and shall not commence installation of the unit until the analysis and plans, if any, to reduce vibrations to an acceptable level, have been reviewed and approved by the Chief, Bureau of Power.

3 Feb 1975

39

Licensee shall install monitoring devices to evaluate adequately the induced vibrations caused by operation of Unit No.3 and shall check the structural stability of the arch dam and penstock, using data obtained from the monitoring devices during test operations.

3 Feb 1975

40

Licensee shall file for Commission approval as-built Exhibit L drawings and revised Exhibit M within one year of the date of commercial operation of Unit No.3.

3 Feb 1975

41

The Licensee shall have the authority to grant permission for certain types of use and occupancy of project lands and waters and to convey certain interests in project lands and waters for certain types of use and occupancy, without prior Commission approval. The Licensee may exercise the authority only if the proposed use and occupancy is consistent with the purposes of protecting and enhancing the scenic, recreational, and other environmental values of the project. For those purposes, the Licensee shall also have continuing responsibility to supervise and control the use and occupancies for which it grants permission, and to monitor the use of, ensure compliance with the covenants of the instrument of conveyance for, any interests that it has conveyed under this article. If a permitted use and occupancy violates any condition of this article or any other condition imposed by the Licensee for protection and enhancement of the project's scenic, recreational, or other environmental values, or, if a covenant of a conveyance made under the authority of this article is violated, the Licensee shall take any lawful action necessary to correct the violation. For a permitted use or occupancy, that action includes, if necessary, canceling the permission to use and occupy the project lands and waters and requiring the removal of any noncomplying structures and facilities.

17 Feb 1998

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