CURB Contacts Virginia Governor & Attorney General

posted Oct 20, 2014, 4:29 AM by Site administrator



MONETA, VA  24121-1991

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-- Monday, 20 October 2014 Press Release --




Smith Mountain Lake, Virginia (October 22, 2014).  -- Cut Unnecessary Regulatory Burden wrote both Governor Terry McAuliffe and Virginia State Attorney General Mark Herring requesting their assistance to assert Virginia’s right to regulate property ownership at Smith Mountain Lake.

In its current legal action, (Appalachian Power Company (plaintiff) v. William W. Nissen II (defendant)) Appalachian Power (APCO) demands that Nissen apply to APCO for a permit before beginning dock construction. Most critically, APCO demands that Mr. Nissen surrender inherent property rights reserved by the original flowage easement deed, dated September 12, 1960, and sign its “Permit.” The terms of APCO’s Permit stand in direct conflict with Nissen’s inherent state property rights, as recorded in his property deed and appurtenant flowage easement; and APCO refuses to allow Nissen, or any other property owner for that matter, to correct APCO’s Permit to be consistent with his state property rights.

 “All lakefront owners and numerous lake construction businesses are threatened by the uncertainty created by the attempt by a private power company, APCO, as a licensee of Federal Energy Regulatory Commission (FERC), to meddle with specific and inherent residual private property rights of Virginia property owners.  This is a classic case of overreach of federal authority that impinges on the freedom of Virginians.  It is in the interests of all Virginians that this issue be resolved,” said Bart S. Fisher counsel for CURB and Bill Nissen.

In fact, its federal license requires APCO to obtain ownership or sufficient control of all properties within the project to implement its license. FERC is well aware that APCO does not hold sufficient control of project lands to implement its Shoreline Management Plan (SMP). Yet, FERC dodged this crucial license requirement when it awarded a new 30-year operational license to Appalachian. Most importantly, in deference to comments and concerns of property owners and businesses on Smith Mountain Lake, FERC stated that it cannot alter property rights with the issuance of a license, and therefore any dispute between a property owner and APCO must be resolved in a state court of proper jurisdiction. Nonetheless, APCO filed its legal action in Federal court and argues that its federal license (regardless of property rights) requires it to permit Nissen’s dock. This circular reasoning is a deliberate ruse to take Mr. Nissen’s state property rights without compensation, and both Appalachian and its regulator are complicit in this taking.

“It is no surprise that APCO’s lawsuit seeks to bypass the foundational state property rights issue, rather than prove its state property rights in the state court of proper jurisdiction.  APCO’s assertions that its Federal license grants them unlimited authority over property owners’ rights to regulate docks and all other shoreline uses in the Smith Mountain Lake project boundary depresses land values.  This in turn seriously threatens growth in local tourism, harms lake area construction and recreational boating businesses, and negatively impacts jobs and local economies across our region,” said Bill Brush, President and founder of CURB.

Nissen’s Flowage Right and Easement Deed, dated September 12, 1960, was agreed to when APCO had no federal license or any requirement to control or permit “recreational purposes.” For 43 years, APCO viewed and universally conceded regulatory control to state and local zoning and construction laws regarding all dock construction.  APCO viewed docks and other reasonable improvements as a right for all lake front property owners. In 2003, Appalachian developed its Shoreline Management Plan, which sought to unilaterally expand its license responsibilities and include its own permitting process for docks. This was the beginning of APCO’s attack on existing property owner rights in violation of state law. This is therefore a recent phenomenon, in which APCO has dramatically expanded claimed regulatory scope of lake front construction far beyond the original intentions of the land owners when flowage easements were granted to APCO.


Contact for further information:


Bill Brush

Founder and President, CURB

Telephone: 540 721 4390