CURB Supports Gangplank Pointe Against FERC Overreach ...

posted Sep 22, 2011, 6:07 AM by Site administrator   [ updated Sep 22, 2011, 6:51 AM ]

MOTION FOR REHEARING

Pursuant to 18 C.F.R. § 385.713, Movant requests a rehearing of the Office of Energy Products, Division of Hydropower Administration and Compliance (DHAC) Staff’s final decision directing that Gangplank Pointe docks and eventually all heretofore grandfathered docks be brought in to conformance with SMP regulations under Project  No. 2210-090 (See eLibrary no. 20110826-0109), which was noticed on 24 August 2011.


LIST OF ISSUES 

1. The order does not adequately take into account the interest and rights of the shoreline property owners and the entire Smith Mountain community that depends on the waterway for its economic survival. 

2. The Smith Mountain Project Shoreline Management Plan (SMP) Violates the Commonwealth of Virginia’s Constitution and Code. 

3. Docks are neither a nuisance nor a threat to environmental, recreational or scenic attributes. 

4. SMP dock regulations that limit maintenance serve no legitimate purpose and are inconsistent with License Article 415. -- Use and Occupancy. 

5. SMP dock maintenance limitation and unwritten policy are arbitrary, impractical, inconsistent and thus unenforceable. 

6. As it should be, there is no stated goal in the SMP to require previously grandfathered structures to comply with future regulations. Such a goal would violate Virginia code and existing flowage easement agreements, and discourage private investment. 

7. The arbitrary limitation on maintenance, which resulted in the final agency action (order) requiring Gangplank Docks be brought into conformance with the requirements of the SMP, is a substantial violation of due process resulting in severe and immediate economic consequences. 

8. The arbitrary limitation on maintenance amounts to an uncompensated taking and as such violates both the 5th and 14th Amendments to the United States Constitution. 

9. SMP regulations, regarding maintenance of existing non-conforming structures approved by the Commission in 2005 and 2010, are irreparably flawed (contradictory and inconsistent) and consequently the 24 August 2011 agency action cannot be implemented without violating other approved SMP regulation. 

10. Requirement to register existing non-conforming structures with Appalachian Power violates applicable Virginia code, was improperly noticed, and required expert knowledge of SMP requirements. 

11. Commission logic in requiring the Gangplank docks be brought into conformance is irrational. 

12. The Shoreline Management Plan creates arbitrary, irrational, inconsistent and unenforceable regulations that unnecessarily conflict with federal, state and local regulations. 

13. The Shoreline Management Plan and the process followed to develop and amend it, violates Executive Orders to eliminate unnecessary and burdensome regulations, and apparently FERC Chairman Wellinghoff’s latest position. 


REQUEST FOR RELIEF 

CURB requests the Shoreline Management Plan arbitrary limitation of structure maintenance to 50% or less, at one time, be eliminated as it conflicts with license Article 415 and is unenforceable because of its lack of specificity regarding the method of calculating the percentage of maintenance and the time interval between which separate maintenance actions can be performed. 

CURB requests the Shoreline Management Plan arbitrary limitation of structure maintenance to 50% or less, at one time, be eliminated for constitutional reasons as it violates both due process and the takings clause of the Constitution of the United States of America. 

CURB requests that all existing (permitted and non-permitted) structures within the project boundary be vested in accordance with Virginia Code § 15.2-2307. Vested rights not impaired; nonconforming uses, as the project contains no federal lands and is operated and partially owned by a for profit corporation operating in the Commonwealth of Virginia. 

CURB requests the Shoreline Management Plan requirement to register existing non-conforming structures with Appalachian Power by August 31, 2005 be eliminated because the licensee failed to properly and reasonably notify affected property owners, failed to acknowledge the adequacy of submitted documentation, and unreasonably required the affected property owner to possess expert knowledge of what constituted a compliant structure. 

CURB requests that the Commission’s Final Agency Action (See eLibrary no. 20110826-0109), mandating that Gangplank Pointe docks and eventually all heretofore grandfathered docks be brought in to conformance with Shoreline Management Plan (SMP) regulations under Project No. 2210-090, which was noticed on 24 August 2011, be stayed until the Commission acts on the revision to the Shoreline Management Plan (Docket P-2210-207). 

CURB respectfully requests expedited review of and action on this request in order to protect the interest of shoreline residents and others who would be directly affected by resolution of these important issues on rehearing and or clarification and would suffer substantial hardship from the immediate implementation of the Order. 

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Site administrator,
Sep 22, 2011, 6:09 AM