posted May 10, 2012 7:30 AM by Site administrator
FOR IMMEDIATE RELEASE ... Thursday, April 26, 2012
Robert Hurt Provision To Protect Smith Mountain Lake, Bedford, Franklin, Pittsylvania Private Property Rights Approved By House Committee
WASHINGTON, D.C. – Congressman Robert Hurt (R-Virginia) today released the following statement after the House Committee on Appropriations approved legislation which included a provision authored by Congressman Hurt to further address the concerns brought to him by 5th District Virginians relating to the Federal Energy Regulatory Commission (FERC) negatively impacting their land value and private property rights. This legislation is now one step closer to becoming law:
“I am pleased that the Committee has included this critical provision to address the concerns brought to me by constituents from Smith Mountain Lake and Bedford, Franklin, and Pittsylvania counties. The Federal Energy Regulatory Commission’s actions have affected many 5th District Virginians with unnecessary costs and burdens while exercising regulatory authority absent consideration of private property rights. I have introduced the SHORE Act – a bill that would ensure private property rights are taken into consideration as FERC exercises authority relating to federally regulated hydropower projects. The provision approved today yet is another step in the right direction. In addressing 5th District Virginians’ concerns, this provision affirms that Congress will exercise oversight to ensure that FERC is taking meaningful steps to protect the use and enjoyment of private property when regulating federal hydropower projects such as Smith Mountain Lake. I remain committed to working on behalf of the people of the 5th District to ensure that they are not negatively impacted by unnecessary federal regulations.”
As you can see below, the language in the appropriations bill builds on the FY12 report language to address concerns that you and others at Smith Mountain Lake and Lake of the Ozarks have brought to our attention. It is definitely a statement to FERC that they are being carefully watched by the Appropriations Committee and Congress and that they expect FERC to take significant steps to address this going forward.
The [Appropriations] Committee is aware that concerns remain about the degree of consideration given by FERC to the rights and concerns of private property owners during the process for developing, reviewing, and approving shoreline management plans. The Committee reiterates its support for the expeditious development and implementation of innovative and mutually agreeable solutions to resolve conflicts among project purposes and private property at specific locations. The Committee also expects FERC to complete as soon as possible its review of the overall shoreline management plan process and report to Congress, as directed in fiscal year 2012. |
posted Apr 28, 2012 8:45 AM by Site administrator
... Frequently Asked Questions (FAQs) Hydropower - Shoreline Management
(Source: http://www.ferc.gov/help/faqs/shoreline-mgt.asp )
As the United States population continues to grow, people are moving to the country’s lakes and the demand for waterfront property and use of hydropower reservoirs is growing. The increased commercial and residential development around many project reservoirs has placed additional pressures on the project reservoir and shoreline resources and poses greater challenges to licensees in managing their projects to meet their license responsibilities and obligations. Where competing uses of project lands and waters arise, a licensee may either on its own initiative, or as required by its FERC license, develop a comprehensive shoreline management plan (SMP) to manage the multiple resources and uses of a project reservoir’s shorelines in a manner that is consistent with license requirements and project purposes, while addressing the needs of the general public.
CURB Commentary ...
Why is it that FERC staff in Washington believes it knows better how to regulate shoreline than local governments and communities that invested and developed these projects? Nothing in the Federal Power Act (FPA) requires a shoreline management plan; nor does it empower the Commission with absolute control of the project boundary; nor does the FPA require the development of conflicting or duplicative regulations to supplant adequate existing Federal, State or Local code.
1. What is a shoreline management plan (SMP)?
Shoreline management is a longstanding FERC initiative intended to protect the shoreline around hydropower projects reservoirs. An SMP is a comprehensive plan to manage the multiple resources and uses of the project's shorelines in a manner that is consistent with license requirements and project purposes, and addresses the needs of the public. Striking a balance between local economic interests and protecting project resources associated with conditions of the license allows the public to enjoy those resources, and is vital for the long-term success of an SMP.
An SMP addresses issues such as which areas should be reserved for various purposes (recreation, environmental protection, residential and commercial development) and what structures – piers, boat docks, patios, etc., may be constructed on licensee-owned shoreline lands. These plans are prepared by licensees in cooperation with local stakeholders and resource agencies, and submitted to the Commission for approval.
CURB Commentary ...
Actually a Shoreline Management Plan is a relatively new FERC staff initiative. FERC staff defines its Shoreline Management Policy in its 2001 publication – “Guidance for Shoreline Management Planning at Hydropower Projects.” However, this guide, on page 4, caveats its authority: “This document was prepared by the staff of the Office of Energy Projects and does not necessarily reflect the views of the Federal Energy Regulatory Commission.”
The history of shoreline management is a troubled one as few if any plans were prepared in cooperation with local stakeholders. In the case of older projects, those built prior to 1970, much of the land in the project is not owned in fee simple by the project operator. Rather, flowage easement deeds grant project operators the right to overflow or flood lands. In some projects, even if the project operator owned in fee simple project lands, they granted easements to abutting land owners to use the lands and construct structures including boat docks, piers and ramps without restriction.
2. Why is an SMP needed?
Licensees have a responsibility to ensure that shoreline development activities that occur within a project boundary are consistent with project license requirements, purposes, and operations. As development and multiple uses of the shoreline continue to grow, licensees will face more and more challenges related to the effects of such development on project lands and waters, including public recreational use and environmental resources. An SMP can assist the licensee in meeting its responsibilities throughout the term of its license.
CURB Commentary ...
Most individuals agree that regulation is necessary to preserve project character and not threaten its scenic, recreational or environmental attributes. The question is, who should regulate development. CURB's opinion that these decisions are best made by State and Local governments as they are the elected representatives of the people.
3. What is required to be included in an SMP?
While these plans are specific to a particular project, SMPs should generally contain a summary of the purpose, goals and objectives of the plan and a description of the shoreline use classifications, with identifies allowable and prohibited uses for existing and future use of the shoreline. A plan may have multiple classification or sub-classification types, but they usually fall within three general types: (1) a protected or natural resource preservation classification; (2) a limited development classification; and, (3) a more intensive development classification. These plans should also include: (a) maps showing the shoreline classifications in relation to the project reservoir, project boundary, and various other features; (b) a permitting program and guidelines developed by the licensee; (c) a monitoring and enforcement program; and (d) provisions for periodic review and update of the plan.
CURB Commentary ...
There are sufficient existing Federal, State and Local code and regulation to protect project resources and any shoreline management plan should be coordinated / synchronized with existing code to eliminate inconsistency and duplication.
4. Who is responsible for enforcing the provisions of an SMP?
The licensee for the project is responsible for enforcing the SMP. The licensee enforces the SMP by overseeing shoreline activities and taking actions to prevent unauthorized uses of project shorelines. The licensee must ensure that the proposed uses of the shoreline are consistent with the purposes of protecting and enhancing the scenic, recreational, and environmental values of the project while safely operating and maintaining the project.
CURB Commentary ...
It would be nice if FERC followed its own guidance and allowed its licensees to follow these principles “… The SMP should be monitored and reviewed on a regular basis to determine how effective it is in accomplishing its goals, and to respond to new or evolving situations or conditions. … By including stakeholders, the Shoreline Management Plan (SMP) will be stronger and more acceptable … A well-crafted SMP results in a stakeholder and licensee partnership.”
5. What is FERC’s role in shoreline management?
Congressional mandates and court decisions over the past few decades have required FERC to balance competing uses of hydropower projects, including (but not limited to) power development, environmental protection, flood control, irrigation, and public recreation (such as fishing and boating) when issuing hydropower licenses. FERC’s responsibility is to be a steward of the public’s resources while ensuring licensees comply with the various conditions of the hydropower license imposed in their licensee. With regard to the SMP, FERC initially reviews and approves SMPs (usually with modifications) and then assures that the licensee is properly implements the provisions of the SMP as approved.
CURB Commentary ...
Nothing in the Federal Power Act (FPA) requires a shoreline management plan; nor does it empower the Commission with absolute control of the project boundary; nor does the FPA require the development of conflicting or duplicative regulations to supplant adequate existing Federal, State or Local code.
6. What is the relevance of the FERC project boundary at a licensed project?
Project boundaries are used to designate the geographic extent of the hydropower project that FERC determines a licensee must own or control on behalf of its licensed hydropower project. The project boundary must enclose only those lands necessary for operation and maintenance of the project and for other project purposes, such as recreation, shoreline control, or protection of environmental resources, as designated in the project license. It should be noted that the establishment of the project boundary does not have any impact on property rights. Whatever rights landowners have in lands within the project boundary – whether conferred by deed, lease, easement or other conveyance – will not change. [Emphasis added]
CURB Commentary ...
The last [emphasized] FERC statement should be taken as fact. A Shoreline Management Plan that impacts or encumbers your property rights, cannot do so, according to the FERC.
A Shoreline Management Plan is a contract between the FERC and its project operator. The FERC has no power to impose regulations on citizens or state and local governments. By requiring its project operators to develop and enforce regulations, the FERC uses its licensees to regulate citizens by proxy.
CURB recommends that all lake front property owners carefully research their deeds and chain of title. Flowage easement deeds simply gave licensees the right to overflow lands, they did not transfer property ownership or property rights. Property owners have the right to access project waters, the right to construct docks, the right to use their lands in accordance with their rights and privileges as fee simple owners. In some projects, the licensee sold adjacent lands with easements permitting the construction of structures in and over the projects lands and waters. Your situation may be different. KNOWLEDGE IS POWER!
7. What other uses are allowed on lands within the project boundary?
Licensees may, with Commission approval, authorize specific uses and occupancies of the project reservoir shoreline that are not related to hydroelectric power production or other project purposes (non-project uses). The uses also impact the reservoir shoreline. Examples of non-project uses include, but are not limited to: commercial marinas, private residential boats docks and marinas,; shoreline erosion control structures; water withdrawal facilities; certain recreation facilities; utility lines; access roads; bridge crossings; and, significant dredging activities.
CURB Commentary ...
Depending upon your situation some or all of these uses are your property rights.
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posted Mar 19, 2012 6:14 AM by Site administrator
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updated Apr 28, 2012 9:26 AM
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... Docket No. AD12-6-000; dated November 8, 2011
CURB recently wrote Ms. Christy Walsh, FERC Office of the General Counsel, who is assigned the responsibility to develop the plan. We should be very concerned that the Commission plans to only review what it considers to be significant rules. Unfortunately, in the eyes of the Commission, Shoreline Management regulations are not significant.
The following is an extract from FERC's plan for Retrospective Analysis: Executive Order 13579 asks independent agencies to review “significant regulations.” The executive order does not define what should be considered “significant regulations.” … However, the Commission, in consultation with OMB, has determined that a very limited number of the Commission’s rules are “major rules” because they do not have a “significant economic impact upon a substantial number of small entities.” … Commission staff will develop an internal list of such regulations and other actions. On a biennial basis, staff will prepare a memo detailing which of the listed regulations are ripe for evaluation based on a 10-year review cycle. … Commission staff will make its memo available for public comment, providing an opportunity for public input as to which of the regulations that are ripe for evaluation warrant a formal public review. You can read C.U.R.B's letter to Ms. Walsh and read the FERC's Plan HERE
Please support the SHORE Act, introduced by Congressman Robert Hurt is necessary, and why additional legislation will be needed to get our independent FERC under control. I urge you to contact congressional representatives because the White House just punted. We “small entities” need to address House and Senate Oversight Committees … this independent agency concept is beyond belief and out of control.
Corresponding legislation exists in the Senate as well, introduced by Senator Roy Blunt (MO) and exists as S.1988.
Voice your support for H.R. 3663 and S.1988 "The SHORE Act" at POP VOX |
posted Jan 24, 2012 7:50 AM by Site administrator
Supporters, we patiently waited for our carefully crafted official response from the White House to our petition to CURB the FERC. Each of the 5,519 petition signatories by now have received their official response from Ms. Lauren Azar, Senior Advisor to Energy Secretary Steven Chu, Department of Energy.
The most revealing comment in the White House reply:
“… FERC is an independent regulatory agency, meaning that while FERC is part of the executive branch of the federal government, it is independent of presidential control, with substantial discretion in carrying out the Federal Power Act's mandate that private hydropower projects it approves be best adapted to the comprehensive development of waterways.”
The official USA.gov website explains that Independent Agencies and Government Corporations were created by Congress to address concerns that go beyond the scope of ordinary legislation. These agencies are responsible for keeping the government and economy running smoothly. A list of these independents can be viewed at USA.gov, and rest assured there are many more than the FERC – I counted 69.
Obviously we have a fourth branch of Government, the independent Agency, which has no responsibility to respond to the We the People and is accountable to no one! Can we all agree this 4th branch should at least be regulated by the Congress that created it?
Recall, on July 11, 2011, the President issued Executive Order 13579, requesting that independent regulatory agencies retrospectively review their significant regulations to ensure they promote public participation, improve integration and innovation, promote flexibility and freedom of choice, and ensure scientific integrity during the rulemaking process in order to create a regulatory system that protects public health, welfare, safety, and the environment while promoting economic growth, innovation, competitiveness, and job creation.
Unfortunately the Executive Order did not define “significant,” however; the FERC has determined that a very limited number of the Commission’s rules are “major rules” because they do not have a “significant economic impact upon a substantial number of small entities.” Guess what – Shoreline Management is not considered a major or significant rule and I think the FERC just called us “small entities.”
All the more reason why the SHORE Act, introduced by Congressman Robert Hurt is necessary, and why additional legislation will be needed to get our independent FERC under control. I urge you to contact congressional representatives because the White House just punted. We “small entities” need to address House and Senate Oversight Committees … this independent agency concept is beyond belief and out of control.
Voice your support for H.R. 3663 "The SHORE Act" at POP VOX |
posted Jan 8, 2012 1:35 PM by Site administrator
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updated Jan 8, 2012 1:35 PM
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By Rance Burger lakenewsonline.comPosted Jan 05, 2012 @ 06:50 PM Last update Jan 05, 2012 @ 06:52 PM Camden County, Mo. — The Camden County commission intends to send a message to the Federal Energy Regulatory Commission and Ameren Missouri regarding shoreline management at Lake of the Ozarks. The message is that locals want to regulate themselves.
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posted Jan 5, 2012 10:40 AM by Site administrator
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updated Jan 5, 2012 10:47 AM
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View H.R. 3663 and voice your support at POP VOX ...
WASHINGTON, DC– Congressman Robert Hurt (R-VA) today released the following statement after announcing the introduction of the Supporting Home Owner Rights Enforcement (SHORE) Act that will require the Federal Energy Regulatory Commission (FERC) to take into account private property ownership rights when issuing and enforcing hydropower project licenses. Companion legislation has been introduced in the Senate by Senator Roy Blunt (R-MO):
“As the federal government continues to expand in size and scope, we must ensure that Central and Southside Virginians and all Americans are not negatively affected by its over-reach, especially as it relates to individuals’ right to own and enjoy private property. The SHORE Act will require that the Federal Energy Regulatory Commission take into consideration the private property rights of Fifth District Virginians when exercising their authority as it relates to Smith Mountain Lake and other federally regulated hydro-projects.
“Federal government regulations have rapidly expanded in reach in the past decade, and this is but one example of that expansion. I appreciate the engaged citizens at Smith Mountain Lake, and in Bedford, Franklin, and Pittsylvania Counties for bringing this important issue to my attention and I look forward to working with my colleagues in the House and the Senate to address this issue.”
Russ Johnson, Franklin County Supervisor & Chairman Of The Tri-County Relicensing Committee added, “The SHORE Act is not only of great benefit to the 240,000 people that live in the counties that encompass Smith Mountain and Leesville Lakes, it is of benefit to private property owners throughout the United States who seek, as we do, to balance environmental stewardship and recreational enhancement with private property and the rights that go with ownership. The noble goals of this legislation go a long way towards fairness and responsibility, which are at the core of our nation and of our government’s proper relationship with its citizens.”
Background Information
The SHORE Act will amend the Federal Power Act to require that when issuing a license or enforcement action, the Federal Energy Regulatory Commission (FERC) must take into consideration private property and the private use and enjoyment of land. Additionally, it will require that licensees consider the benefit of private landownership to investment and increased tourism when developing recreation resources within a project boundary.
HOUSE & SENATE APPROPRIATIONS REPORT
Congressman Robert Hurt was also successful in including report language in the final FY12 Appropriations bill relating to Smith Mountain Lake and Lake of the Ozarks.
As you can see, this is a strong statement from the House and Senate Appropriations Committees that the concerns over property rights at Smith Mountain Lake and Lake of the Ozarks will be carefully watched by the House and Senate Appropriations Committees and Congress and that Congress expects FERC to take significant steps to address these concerns going forward.
The conferees are aware of significant local concerns with the process for developing, reviewing and approving shoreline management plans at Smith Mountain Lake and Lake of the Ozarks. As the licensees develop and FERC reviews and approves shoreline management plans, both parties must not only ensure the continued unimpeded operation of the project, but also recognize the rights and concerns of private property owners and local communities. The parties should develop innovative and mutually agreeable solutions to resolve conflicts among project purposes and private property, which should be implemented without delay. The conferees note that several options already exist for resolving such conflicts - such as realigning project boundaries, grandfathering non-conforming structures, or conveying the disputed property - and that the removal of private structures should only be required, if at all, when all other options are inadequate. The conferees direct FERC to review the shoreline management plan process to identify any improvements that could be made to address local concerns at each stage of the process and to submit to the appropriate congressional committees a report detailing any administrative changes to be undertaken as well as any recommended legislative changes that may be necessary. |
posted Dec 17, 2011 6:27 AM by Site administrator
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updated Dec 17, 2011 6:37 AM
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No response of any kind from the White House, which leads us to believe We the People are not being heard. Could it be that Our Petition was simply a mechanism to get our email addresses?
On the 28th of September, We petitioned the Obama Administration to CURB FERC regulations, which overreach and overregulate the shorelines of its hydroelectric projects.The Federal Energy Regulatory Commission is enforcing shoreline management rules decades after hydroelectric projects were first developed. Retroactive rules are irrational, without reason, or scientific basis. The burden of this regulation far outweighs any public benefit. The impact on surrounding communities cannot be exaggerated as FERC rules are discouraging private investment, lowering property values, killing jobs, limiting access to project waters, inhibiting landowner’s ability to sell, violating Federal, State and local ordinances, and trampling on personal property rights. FERC is ignoring Executive Order 13563 and the 11 July 2011 supplemental order for Independent Agencies. Wise regulatory decisions depend on careful analysis of the likely consequences of regulation.
At 4:35PM EDT 26 October -- YOU did it -- we reached our goal of 5000 signatures (in less than 30 days) to CURB the FERC and get them out of the SMP business ... OUR 5000th signature was from Mike M of Gravois Mills, MO -- Lake of the Ozarks. Smith Mountain Lake was signature 4999 from Linda B of Huddleston, VA.
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posted Dec 17, 2011 6:20 AM by Site administrator
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updated Dec 17, 2011 6:21 AM
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Congresswoman Hartzler, along with several other Congressmen, including Congressman Hurt has presented a bill (H.R. 3244) that proposes to stop FERC from ordering the removal of existing non-conforming structures (except those built in "bad faith") from the project boundaries. Senators McCaskill & Blunt (Missouri) have proposed a similar bill in the Senate. There seems to be bi-partisan support in both houses for this effort. The next step is to craft legislation that will remove land management from FERC's hands.
I encourage you to make your comments regarding these bills to your members of Congress. Speak up using POPVOX ...
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posted Nov 11, 2011 1:09 PM by Site administrator
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updated Nov 11, 2011 1:10 PM
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This conversarion It happened this morning between residents of Lake of the Ozarks, their valiant US Senator McCaskill and the same ole FERC crew. It’s an hour long but you will see parallels and get a sense of where we (you) are headed. In some areas we are ahead of this curve, in others we’re behind here at SML I called Senator McCaskill's legislative aid and explained that if she were to replace "AmerenUE" with "Appalachian Power" and substitute "Smith Mountain Lake" for "Lake of the Ozarks" in this broadcast, the story fits us like a glove. Heavy handed power company threatening those who cannot afford to defend themselves, the same fight over easement deeds, the same FERC saying it's the other guy's problem, the same unsupported additional burdensome and costly regulation with no benefit, the same shifting of the cost burden to property owners by the power company. There is no coincidence here -- this is a orchestrated plan to empower licensees to Steal My (Your) Property rights. I think we need to call and encourage our members of Congress to hold oversight hearings and ask to testify at those hearings ... under the bright lights of the Capitol hearing room, I sincerely hope these abuses cannot survive. Enjoy http://www.krmsradio.com/2011/11/11/conference-call-with-ferc-mccaskill-and-local-stakeholders/ |
posted Nov 11, 2011 7:43 AM by Site administrator
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updated Nov 11, 2011 8:33 AM
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In it's most recent order clarifying the FERC's position on property rights at Lake of the Ozarks, FERC officials are now insisting their order was misinterpreted and that property rights were never in jeopardy. I find this statement disingenuous, at best. Read for yourself the original language of FERC's 1st order of July 26th below:
“Lands that are included in the project boundary are
needed for particular project purposes. Non-conforming structures located
on lands in the project boundary can have adverse affects on project purposes
and the project’s scenic, recreational, and environmental values and are
inconsistent with the licensee’s obligations and responsibilities under
standard article 5… Further, it should be noted that the Commission does not
condone residential development and occupancy of project lands, since such
residential use is inconsistent with the Commission’s policy of maximizing
public recreational development. Consequently, AmerenUE’s SMP must demonstrate
compliance with the Commission’s policies on these issues related to
non-conforming structures at the project. As such, AmerenUE should be required to develop a plan
and schedule to inspect and identify all lands within the project boundary;
identify existing non-conforming structures and encroachments; identify the
project purposes being served by the underlying lands, and take appropriate
actions to resolve such non-conforming structures and encroachments with the
goal of removing them from the project boundary. In the majority of
cases, the existing non-conforming structure/encroachment should be removed in
a timely manner and the site restored to pre-existing conditions.
However, it may not always be feasible to remove the non-conforming structure/encroachment
in the near term due to site-specific circumstances or hardship, and later
removal of the encroachment may be warranted.”
Pretty clear, right? Now here’s FERC reversal:
Commission staffers said today that a FERC
order issued July 26 was misinterpreted to mean that it would order
removal of all privately owned structures built within the boundaries of the
Osage project. Ameren is responsible for managing the shoreline, which includes
ensuring that structures within the project boundary around the Lake of the
Ozarks are built with the proper authorizations.
Property rights owners have in lands within the
boundaries of the Osage Project, whether conferred by deed, lease, easement or
other conveyance, have not been and will not be altered by FERC's actions, the
commission said.
"I am confident that today's decision will bring
clarity to residents along the shoreline of the Lake of the Ozarks," the
commission's chairman, Jon Wellinghoff, said in a statement. "I expect
Ameren to move quickly to comply with the Commission order. This will resolve
all outstanding issues associated with its shoreline management plan and bring
this matter to a swift and satisfactory resolution."
Speaking to reporters on a conference call, John Katz,
the deputy assistant general counsel for energy projects at FERC, criticized
how development along the Lake of the Ozarks has been handled. "Ameren, through its inaction, over the last eight
years has needlessly raised public concern and has mistakenly led property
owners to believe the commission has created the problem," Katz said.
Clearly this is an abrupt U-turn from FERC -- no innocent
misinterpretation even remotely possible. What is more disturbing is that
the language/rationale in the original Lake of the Ozarks order is the same
language/rationale we've seen at Crescent Bar Island, and at Smith Mountain
Lake regarding Gangplank Pointe, and I'm certain at many other FERC mismanaged
projects.
I would have preferred a FERC statement
more along the lines of: "We [FERC] have over-reached our authority and have
caused unnecessary stress and concern for the residents surrounding our
projects. Consequently we [FERC] acknowledge our errors of judgment and
we [FERC] are going to encourage our licensees to form partnerships with their
communities, as was done prior to our [FERC] invention of Shoreline Management;
as the community and our licensee are the most knowledgeable and most
qualified to regulate their shorelines."
Blaming their licensees for FERC mandated
content in Shoreline Management Plans does solve the problem, it simply
deflects accountability. So for those licensees struggling to implement
FERC mandated regulations in your Shoreline Management Plans, stand by to be
"run through your turbines" by your regulator, as it was your fault
for accepting their direction. Unfortunately commonsense did not
prevail and this is why we must continue to support the recently proposed federal
legislation to get the FERC out of the SMP business -- completely. |
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