Update on Meeting with Senator Mark Warner 19 October 2011 ...

posted Oct 21, 2011, 8:32 AM by Site administrator
Bottom line:  In the last decade FERC has mandated that all hydro-projects develop Shoreline Management Plans.  All projects are different, Communities are different and so are licensees.  Too many SMP's are not working -- the single consistent factor why -- the FERC.

First, the good part: WE (local governments, NGO’s and CURB) have the attention of Senator Warner and his support to find a solution for Smith Mountain Lake; and VA Congressman Hurt was fantastic in his opening remarks discussing the absurdity of FERC’s shoreline management policy. We asked the Senator to encourage a working meeting with FERC, the licensee and the Community to develop an SMP for Smith Mountain Lake or to sponsor corrective legislation to get the FERC out of the SMP business as there is no need for their involvement – that the SMP should be a partnership between the Community and the licensee. We also explained that SMP issues were not isolated to Smith Mountain Lake – that unneeded SMP regulations were impacting projects across the County – and Senator Warner noted the fight that Senator Claire McCaskill is behind at Lake of the Ozarks. Senator Warner asked that we proceed to a settlement conference with a FERC appointed mediator and that he did not rule out the necessity for corrective legislation.

Now a dose of reality: I do not hold out hope that a settlement conference [see FERC’s Policy attached below] will work or solve the problems at all of the FERC’s mismanaged projects. If ALL parties cannot agree on a specific item proposed for settlement, that item is removed from the agreement and the parties are told to go ahead and pursue resolution through the court system – so a comprehensive settlement agreement can be reduced to one or two easily resolvable issues and FERC can claim success. FERC is not a party to the settlement agreement, will not participate with knowledgeable staff, but has final approval of the agreement, duh! However, I do think at SML we must give this a chance or we will be painted as unreasonable.

Based upon my observations during the meeting:

1. FERC told everyone that its licensees have wide discretion in the development of their SMPs and that FERC does not get into property rights issues … (and yes we’ve heard this from FERC before as an explanation of Standard License Article 5).

2. A frustrated licensee stated that “they [licensee] are not so naïve as to believe that FERC staff did not drive the content of this SMP.”

3. FERC observed that all SMP’s are unique to give their licensee’s great discretion.

4. FERC offered services of their settlement staff, while explaining why they can’t speak for the Commissioners and cannot participate in the development of the SMP.

5. The licensee was frustrated with the Community and the FERC -- they’re tired of working the same issues over and over and it’s costing a lot of time and money.

6. The Community argued (I believe convincingly) that WE developed responsibly, WE expanded public recreation through private investment, WE protected the environment & fishery, WE grew OUR local economies, and WE are the TRUE stewards of these projects … and WE did this without FERC SMP policy and minimal licensee involvement … and that OUR way works, because we have a decades long proven track record of success following existing Federal, State and local regulations.

7. And all the while the FERC General Counsel kept interrupting our presentation to say: “I cannot listen to solutions, I can only discuss process; I cannot speak for the appointed Commissioners; We did not do anything wrong; We have to follow policy; FERC doesn’t have anything to do with personal property rights; WE can offer the possibility of a settlement conference—but ALL parties must agree to go this direction but I cannot offer assurance the Commissioners will approve the settlement; and that time is of the essence – get this one – that FERC cannot allow these issues to drag-out. [Guess he forgot about the FERC’s three year wait at Lake of the Ozarks and Grand Lake and Crescent Bar Island.]

It’s clear to me that the FERC representatives at this meeting have little insight into what FERC’s enforcement staff is doing. They don’t want to hear solutions or solve problems, they simply want to hide behind their interpretation of their rules; and it’s their job to isolate FERC Commissioners from these issues.

A way forward – we must all continue to engage our Legislators and their staffs. That we be aware that settlement is a possibility, but that any single rogue party can derail these efforts and the FERC will simply state they tried but that the parties are unwilling to compromise. I continue to believe that corrective legislation is needed—legislation that gets the FERC out of the SMP business and leaves the SMP and its enforcement between the Communities and the licensee. Heck – this worked reasonably well for decades! 

Site administrator,
Oct 21, 2011, 8:32 AM