Anti-regulatory group fights for lake rights

Wednesday, July 30, 2014 4:05 pm

By JASON DUNOVANT Smith Mountain Eagle

Appalachian Power’s Shoreline Management Plan still seems to be a concern for many Smith Mountain Lake residents. Nearly 100 concerned citizens packed into the Westlake Library this past Thursday to discuss ways to fix problems that many believe are still ongoing along the lake’s shoreline.

Lake resident Bill Brush held the meeting for Cut Unnecessary Regulatory Burden, Inc. or CURB for short. Brush created the non-profit back in 2011 to fight some of what he believed were unnecessary regulations by Appalachian Power and the Federal Energy Regulatory Commission that oversees them.

Efforts by CURB and other lake groups led to several changes to the Shoreline Management Plan earlier this year, but Brush feels that many of the changes did not go far enough. And many local residents seemed to share those feelings as shown by the large turnout this past week. Westlake Library’s small meeting room was packed full with several attendees having to stand.

Brush’s main focus of the meeting was the authority of FERC and AEP over the property rights of individuals who live along the shoreline. According to Brush, property rights fall under State authority and responsibility, not to FERC. FERC’s authority to regulate does not extend beyond their authority over Appalachian Power Company.

Brush asked the crowd, “If they don’t have the authority, how can they empower AEP to do it?”

One way to give away those property rights, according to Brush, is by signing a permit required by AEP when building a dock or when transferring ownership of a dock. He cautioned residents to be careful before signing anything from AEP.

In many cases, AEP does not own the shoreline and many lakefront homeowner’s property boundaries extend far below the 800 foot contour line that marks the shoreline. Brush believes that AEP only has fee simple ownership of around 10 to 15 percent of project lands.

Brush stated that AEP has Flowage Rights and Easement Deeds that gave them the right to flood the property and clear anything below the 800 foot contour line when Smith Mountain Lake was created. The deeds still provided rights for the landowners that include using water for domestic use as well as access to the lake for recreational purposes.

Many of the flowage easement deeds also granted explicit rights to docks for many landowners. For those without those explicit rights, Brush argued that a dock could be seen as a recreational purpose that would be allowed as part of the flowage easement deed.

Lakefront property owners currently have to go to the county to obtain a building permit to build or make changes to their dock. Property owners also have to obtain a permit from AEP. Brush stated that an additional permit from AEP is redundant, unnecessary, and in many instances taking away a landowners rights.

Brush encouraged lakefront property owners to consider making changes to any permits required by AEP for the construction of a dock or for any changes to a current dock. He said that any permit by AEP is between them and the property owner. He said that any reference to AEP’s federal license should be removed from the permit, including references to the Shoreline Management Plan.

“This is a contract between the landowner and AEP, FERC should have no say,” Brush said.

Brush also encouraged property owners not to sign up for the Legacy Program recently introduced by AEP as part of the recent changes to the Shoreline Management Plan. The program allows docks built before the Shoreline Management Plan to be registered by AEP, allowing residents greater ability to rebuild if something should happen to their dock. According to Brush, the Legacy Program takes away rights from landowners and gives them to AEP.

While Brush has researched the issue for years, he strongly encouraged property owners to seek legal advice before changing any AEP permits.

According to Brush, another way to continue the issue further is to support the SHORE Act recently introduced by Congressman Robert Hurt. The act would limit FERC’s authority and give more rights back to property owners.

Brush asked that everyone interested in making changes should write letters Governor Terry McAuliffe and to Senators Mark Warner and Tim Kaine. The letters should ask them to support the SHORE ACT and to limit FERC control over the lake.

Pushing for more support would help in making further changes to improve property rights around Smith Mountain Lake, Brush said. He asked that everyone in attendance take part in the effort.

“The power companies don’t want to fight this fight,” Brush said.