Frequently Asked Questions

posted Sep 27, 2012, 6:07 AM by Site administrator   [ updated Dec 2, 2014, 5:32 AM ]

1.  Does the Smith Mountain Project need a Shoreline Management Plan because our shoreline may be subject to competing developmental pressures such that public access or environmental resources are at risk? 

Yes, with the following qualification.  CURB believes existing federal, state and local regulations have and will continue to protect and enhance the project. Development around the project has been guided by local zoning. However, dock regulations are inconsistent among the surrounding Counties and these regulations require updating to place reasonable controls on size, height, setback, etc. In the end, localities, through balanced regulation have proven capable of guiding the responsible development of our shorelines. 

What we need is a working partnership with Appalachian, rather than a FERC mandated one size fits all approach to shoreline management.

Looking at the science and other factors, responsible development changed the project’s character over time but did no harm to SML. Development along our shorelines halted shoreline erosion through stabilization and in doing so improved water quality and benefited the fishery. Commercial development increased public access to the project and now accounts for 75% of all public access. Docks cover about 1% of the surface area of the lake and have become the prime fishing grounds for bass fishermen. Our varied shorelines range from high density commercial and residential development to preserved undisturbed natural shoreline. The majority of our shoreline is developed as low density single family residential, and those property owners are the true stewards protecting and enhancing our lake.

2.  Who is responsible for creating this mess and how does it get fixed?

FERC created this mess and 
ultimately we are responsible to fix it.

In 1960, the Federal Power Commission (predecessor to FERC) issued a licensee to Appalachian Power to construct and operate the Smith Mountain Project for 50 years.  The Commission determined that: (1) The proposed project would consist of all lands constituting the project area and enclosed by the project boundary and that the interest in these lands was necessary or appropriate for the purposes of the project; (2) That the description of project lands conformed to the Commission's rules and regulations and was included as part of the license; and (3) The proposed project was best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water-power development, and for other beneficial public uses, including recreational purposes.

When Appalachian acquired land and flowage easements to construct the Smith Mountain Project, they did so in differing methods. The methods used resulted in varying degrees of ownership for the land adjoining the project as well as land below the 800 foot (upper reservoir) and 620 
foot (lower reservoir) elevations, including submerged lands.  We estimate that Appalachian negotiated flowage easements on approximately 18,000 acres in the project boundary of Smith Mountain Lake in Bedford, Franklin and Pittsylvania Counties combined.

Congress  modifying the Federal Power Act in 1986 to form FERC and require its Commissioners, when awarding new licenses, to give equal consideration to: (1) the purposes of energy conservation, (2) the protection, mitigation of damage to, and enhancement of, fish and wildlife (including related spawning grounds and habitat), (3) the protection of recreational opportunities, and (4) the preservation of other aspects of environmental quality.

The beginning of an unbalanced "green agenda" to save communities from themselves -- making FERC responsible.

FERC changed its policies over time.  In 1998 FERC mandated that Appalachian begin regulating: (1) landscape plantings; (2) noncommercial piers, landings, boat docks, or similar structures and facilities that can accommodate no more than 10 watercraft at a time where said facility is intended to serve single- family type dwellings; (3) embankments, bulkheads, retaining walls, or similar structures for erosion control to protect the existing shoreline (4); food plots and other wildlife enhancements.

In 2002 FERC strong-armed its licensee to develop a Shoreline Management Plan following FERC staff guidelines.  In 2005, after "guiding" plan content behind the scenes, FERC ordered the plan's implementation over the objections of stakeholders and local government.

Little science or study went into the first SMP's creation.  FERC simply assumed that "the project’s shoreline may be subject to competing developmental pressures such that public access or environmental resources are at risk."   The science came later during the relicensing of the project.  Sixteen (16) separate studies were conducted over three years.  No studies concluded that public access or environmental resources were at risk.  FERC agreed and awarded a new 30 year license in 2009, concluding: 

"The Commission’s general policy is to establish 30-year terms for projects with little or no redevelopment, new construction, new capacity, or environmental mitigation and enhancement measures ... This license authorizes no new capacity, and only a minor amount of new environmental enhancement measures. Consequently, a 30-year license for the Smith Mountain Project is appropriate."

FERC also re-approved the 2005 SMP without change and incorporated it into the new license.  Science did not matter.

3.  Does the FERC approved SMP for Smith Mountain Lake limit private property rights? 

Absolutely. SMP regulations require permits for docks and piers, vegetation removal and shoreline stabilization that limit what can be built, removed or stabilized.

4.  Does the licensee have sufficient "control" to limit private property rights? 

NO!  Clearly it should on the lands it owns in fee simple.  However, Appalachian only owns between 10% and 20% of the Project Lands fee simple.  The vast majority of the land comprising the project are privately owned, over which Appalachian was granted flowage rights (the right to flood certain portions).  So for the vast majority of lake front property owners, Appalachian's "control" is limited by property rights and Appalachian's authority to regulate is much less than what the company asserts.

5.  How much of SML is owned in fee simple by the licensee? 

Most projects lands are controlled by Flowage Rights and Easement Deeds the licensee negotiated in the 1960’s with landowners before it constructed the project. The surface area of SML is approximately 20,600 acres, but the project boundary rises to the 800 foot contour line, which adds an estimated additional 1,500 acres.  Total area within the SML project boundary equals approximately 22,100 acres.

We estimate that Appalachian holds flowage easements on approximately 18,000 acres of the project boundary of Smith Mountain Lake in Bedford, Franklin and Pittsylvania Counties combined.  Therefore Appalachian likely owns in fee simple approximately 2,345 acres or 10.6% of the project, but CURB has not done an exhaustive search of all land records.  CURB believes than Appalachian only has fee simple ownership of between 10% and 20% of project lands.

6.  What explicit rights were granted to Appalachian in the Flowage Right and Easement Deeds? 

Appalachian was granted the right to overflow and the right to cut, burn and/or remove all buildings, structures, improvements, trees, bushes; driftwood and other objects and debris within the project boundary for the purpose of construction, operation and maintenance of the hydroelectric project.  Therefore any use of the project boundary that would interfere with Appalachian's ability to generate electricity could be removed.  Clearly with over 7,700 docks built, docks have no impact on the operation of the project.

7.  What explicit rights are held by the fee simple property owner? 

All things consistent with fee simple property ownership within reasonable limits that would not impact project operations -- as defined in 1960 -- when the deal was struck between the property owner and Appalachian. 

8.  Do lakefront fee simple property owners have a right to a dock? 

We believe so.

The common practice between 1960 and 2003, was that no one, including FERC or Appalachian, questioned the right of lakefront property owners to construct and maintain a dock, to stabilize shoreline, or to clear and plant within the project boundary or to use their property in a manner not inconsistent with Appalachian’s rights to clear and overflow their property. Although Appalachian did issue some permits for dock construction in 2000, permitting was not required from Appalachian until September 2003 for single family residential docks.

Many flowage easements explicitly state that docks are allowed and even prohibit Appalachian from any further clearing or removal of structures, debris and vegetation.  Every flowage right and easement deed states the property owner has the right to cross the lands below 800 foot to access the project waters for recreational purposes. A dock is defined in the FERC approved SMP as: A platform extending from a shore over water and supported by piles, pillars or flotation materials, used to secure, protect, and provide access to boats or personal watercraft or for recreation (e.g. fishing, wildlife viewing, etc.).

By FERC's definition a dock is a recreational purpose.

In 2003 Appalachian estimated there were 6,336 residential docks on Smith Mountain Lake and 98 residential docks on Leesville Lake, all of which were constructed absent any Appalachian regulation. In December 2010 Appalachian estimated that 7,524 residential docks existed on Smith Mountain Lake and 146 residential docks existed on Leesville Lake. Placing this in perspective, of this total approximately 84% of the residential docks on Smith Mountain Lake and 67% of residential docks on Leesville Lake were allowed and constructed absent any Appalachian regulation and permit.