FERC on Property

The Federal Energy Regulatory Commission (FERC) has regulatory authority only over the licensee and can administer and enforce the terms of the license only through the licensee and the licensee’s property rights. Here’s the catch, FERC does not determine whether the licensee actually holds sufficient rights in lands within the project boundary. If a landowner or other third party disputes this, FERC will direct the licensee and the aggrieved party to resolve the dispute in a State court with jurisdiction over the lands at issue.

But FERC knows the extent of Appalachian’s property rights at Smith Mountain. On 17 May 1967, and again in November 2004, Appalachian Power submitted a series of project drawings with extensive notes that detailed its control over project lands. The May ‘67 and November ’04 drawing notes detailed differences in flowage easements and how properties were acquired. With the award of the new 30 year license on December 15th 2009, Appalachian submitted a new drawing package dated March 3rd 2008, with a single note regarding its property rights in the project: “1. LICENSEE HAS OBTAINED ALL FLOWAGE RIGHTS NECESSARY FOR ADEQUATE OPERATION OF THE PROJECT EITHER IN FEE TITLE OR EASEMENTS. ALL PROPERTY RECORDS ARE KEPT ON FILE WITH THE LICENSEE.” The lack of property details in the current package is starkly evident.

FERC knows Appalachian Power does not hold sufficient property rights to implement its overreaching Shoreline Management Plan. However FERC shrewdly pleads ignorance of property rights as a shield, as it requires Appalachian Power to implement license requirements, regardless of property rights. Unfortunately, FERC’s behavior at Smith Mountain Lake is patterned after similar behavior at the Lake of the Ozarks. FERC’s response, if property rights are in dispute --we say nothing; we see nothing; we hear nothing -- sue Appalachian Power in State Court. What word can describe the actions of a Federal Agency that uses deceit to take individuals property rights ... FERC!