The Federal Power Act (FPA) authorizes the Federal Energy Regulatory Commission (FERC) to award and enforce licenses for hydroelectric generation. APCO was issued its original 50 year construction/operational license in 1960. Also around this time, Appalachian Power Company (APCO) acquired easement rights to flood privately owned lands to build the two dams and impound the three rivers to form Smith Mountain and Leesville reservoirs. The original license did not require the company to regulate shorelines or uses within the project. Permits were not required nor issued to property owners to build residential docks, beaches, commercial marinas, boat ramps, retaining walls, restaurants, etc. For the first 40 years FERC oversight was consistent with the original license terms, and APCO operated the project while it honored the flowage easement terms and conditions. Then in August 2003 APCO rewrote the rules with their Shoreline Management Plan. However, the underlying flowage easements were not changed and APCO failed to purchase additional property rights needed to regulate shorelines. Virginia easement law is unambiguous--shoreline property owners retain the right to use these easement lands for any purpose so long as that use does not prevent APCO from flooding, or operating and maintaining the dam and power station. In 1996 the Virginia Supreme Court ruled: “In determining the scope of an easement, we have repeatedly held that the owner ... retains the right to use his land in any manner which does not unreasonably interfere with the use granted in the easement.”[1] Under Virginia property law, no owner is required to seek APCO’s permission or sign APCO’s revocable permits to build a dock, landscape their property, graze cattle, or make recreational use of the land below the 800 foot contour. Under Virginia law, no use can be made of an easement different from that established when the easement was created, which imposes additional burdens on the grantor of the easement. Shooting Point, L.L.C. v. Wescoat, 265 Va. 256, 266; 576 S.E.2d 497, 503 (2003); see also McCarthy Holdings, LLC v. Burgher, 282 Va. 267, 273; 716 S.E.2d 461, 465 (2011)(holding that an easement can be conveyed without limitations on use by the easement holder and remain an easement limited to the use established when the easement was created). At the time this flowage easement was executed, APCO had no obligation from FERC to control uses and occupancies in the Project and APCO did not do so until after the 1998 amendment adding Article 41. There were many docks in existence prior to the addition of Article 41 and prior to the implementation of Shoreline Management Plan without any APCO permit. In 1960, when the flowage easement was executed, neither APCO nor the landowner grantors could have understood or contemplated that there would be any need for permitting process which would place additional duties upon the landowners, including the need to vegetate property pursuant to APCO’s requirements if they wanted to have a dock. The right to use the lake for recreational purposes was expressly preserved in the easement. The recreational uses of Smith Mountain Lake include having a dock. Thus, under Virginia law, APCO cannot use the 1960 flowage easement to impose additional burdens on the Pressls and must either purchase additional property rights from the landowners or obtain them by way of eminent domain. Just as the FPA and FERC contemplate. |