The Whole Story
It began with good intentions …
After 32 years of limited regulation and control from Appalachian Power Company, in February 1998 the FERC discreetly added new license Article 41 to Appalachian Power’s existing license. Article 41 required Appalachian Power to grant permission for piers, boat docks, landscape plantings, and shoreline stabilization, so long as these “uses” protected and enhanced the project’s scenic, recreational and other environmental values.
In 2000 FERC staff encouraged Appalachian Power to develop a Shoreline Management Plan (SMP) to define standards, guidelines, and procedures for implementing its new responsibilities. Added shoreline regulation sounded good to many lake residents as they believed the lake had become over-crowded, less safe and over-developed. So in May 2001, Appalachian Power formed a steering committee, hired a consultant, and began to adapt a SMP originally developed for another reservoir to Smith Mountain.
But it ended in overzealous regulation to protect an environment that was already protected …
“Striving for a balance that supports local economic interests yet protects environmental and recreational resources and that allows the public to enjoy these interests and resources.” (SMP--Goal 8).
The first clue things were not going well was when Appalachian Power began classifying lake-shoreline to limit its development potential, without any evidence or analysis to support that project recreational or environmental values had been harmed or threatened by land use. Local governments strongly opposed Appalachian Power’s move to classify shoreline because in the Commonwealth of Virginia regulation of land use and development is the constitutional responsibility of elected local governments. Appalachian Power insisted it was their license requirement, their project and their SMP, so in September 2003 they dismissed the steering committee, published the SMP, and began to enforce a flawed document that had received mixed support from local governments, businesses, lake organizations and lake residents. A single page of County code for dock regulation was replaced with 80 pages of Shoreline Management Plan regulations.
And the FERC ignored local attempts to balance economic and environmental interests …
FERC even went so far as to suggest that all in-water construction be prohibited between February 15 and June 15, except for pile-driving and above water dock construction activities that be prohibited “only” from April 15 to June 15. In July 2005, the FERC staff made these DGIF suggestions license requirements, thus shutting down all in-water construction for as much as four months every year. Neither the FERC nor DGIF had evidence that any of these activities were harmful to the lake or its fishery—they simply thought it was a good idea and totally ignored any economic ramifications or attempt to balance these competing objectives.
So began the taking of landowner rights and the diminishment of elected local government authority, under the false pretense of
environmental stewardship …
After a slow and faltering start, FERC encouraged Appalachian Power to invent SMP regulations that are inconsistent with or outright violate existing Federal, State and Local code. Among the most onerous examples in the initial SMP:
1) Classification of 52 miles (10%) of Smith Mountain Lake and 50 miles (44%) of Leesville Lake shoreline as conservation-environmental, which prohibits docks, piers and shoreline stabilization without FERC permission. The conservation-environmental classification includes sensitive cultural, scenic, wildlife and island areas. Arguably, some of this shoreline cannot and should not be developed. However, without regard to existing Federal code, Appalachian Power designated (and the FERC concurred) the majority of conservation-environmental shoreline as “emergent wetlands and scrub-shrub habitat,” without following the federally mandated wetlands delineation process. Appalachian Power is now proposing that development cannot occur within 30 feet of a conservation-environmental classification, but again, this arbitrary buffer has no basis in science or Federal regulation.
2) Appalachian Power, with the FERC’s approval, developed more restrictive requirements regulating conformance of existing (pre-SMP) docks to current SMP requirements. Any dock that existed prior to the SMP can continue to exist as is, but if that pre-existing dock is destroyed by fire or accident, that dock can only be rebuilt if owners submitted documentation Appalachian Power before September 1st, 2005; which violates State and Local code.
3) If more than 50% of a dock or pier requires maintenance, the SMP requires the dock to be rebuilt to current SMP regulations. This is a backdoor path to force existing structures to comply with the latest SMP regulations, and is a flagrant violation of State and Local code.
4) The SMP requires the property owner to “mitigate” for the construction of a dock by planting native vegetation along the shoreline, even though there is no evidence that this dock in any way harmed the environment. Docks currently occupy approximately 1% of the total surface area of SML, they provide cover for the fishery, and there is no Federal, State or Local code requiring such plantings.
5) The SMP prohibits the removal of vegetation within the project boundary without permission, even on land Appalachian Power does not own and only has the right to flood. The SMP rationalizes that a “functional” vegetative buffer is environmentally responsible, without defining the function or evaluating its effectiveness. There is no Federal, State or Local code requiring this buffer.
6) Stabilizing actively eroding shoreline with riprap, in most cases requires the landowner to also plant native vegetation to establish a “functional buffer” and to “mitigate” for stabilization. However, properly installed riprap is an environmental enhancement as it halts erosion, stops siltation, improves water quality and clarity, and provides fishery habitat.
Why you should be concerned …
With surrounding local governments all but shirking or ignoring their constitutional mandate to regulate land use and development, your shoreline property rights are now controlled by a publicly-owned-for-profit-monopoly, granted broad authority by an appointed Federal bureaucracy. The FERC requires Appalachian Power to regulate your land use through permits, inspection, enforcement, and punishment. In our representative democracy, these powers are always distributed among our three separate but equal branches of government to ensure fairness and due process. However in the domain of FERC, assigns a corporate-monopoly the role of legislator, regulator, sheriff, judge and jury. Appalachian Power pays FERC an annual license fee of $950,000 for the Smith Mountain Project, which ultimately funds FERC staff salaries. This is a palpable conflict of interest.
Appeals follow a kangaroo process …
Appeals of Appalachian Power decisions are strictly controlled and must follow complex and generally not understood administrative procedures. The individuals that cite the offense are the same ones that hear the appeal; and the FERC will not intervene until every avenue of appeal is exhausted with Appalachian Power; who will hold your dock permit or your permit re-assignment hostage, until you either submit or give up. If you choose to appeal a FERC decision, your appeal is reviewed by the same staff that rendered the original FERC decision – guess how many FERC decisions get reversed?
Such abuses of power cannot be justified as being necessary to protect or enhance the project’s scenic, recreational and environmental values; because no degradation of these values has ever been documented. To the contrary, the lake developed responsibly by any reasonable measure. The fishery is sound and unthreatened, public recreation has grown, water quality has improved in the developed portions of the lakes due to responsible stabilization of the shoreline by residents, and our varied shoreline vistas have made this lake both a regional and national tourism destination. All this occurred prior to shoreline management and was accomplished without expensive unjustified regulations forced upon us by the current FERC approved, Appalachian Power administered Shoreline Management Plan.
How you can help …
In spite of the persistent and combined efforts of several elected officials, business leaders, concerned citizenry and non-governmental organizations, these efforts have failed to reverse the taking of our property rights. We’ve reached the point that a legal challenge to these abuses is unavoidable. The cost of this litigation is substantial and should not in all fairness be borne by a single individual or even a small group of individuals; since we all have a stake and will benefit when we CURB FERC's unconstitutional authority.
We will fight FERC's regulation and have formed the non-profit defense fund Cut Unnecessary Regulatory Burden (CURB) as a vehicle to collect contributions. CURB funds will be used to obtain legal advice and potentially help off-set legal costs to defend our basic private property rights, seeking to CURB FERC abuses of their original mandate—to make electric power and to operate the project responsibly, for the benefit of the fishery, interstate commerce, public recreation and the environment. CURB as a 501(C)4 can and will lobby as a civic league to promote the interests and social welfare of those who live on or near FERC managed hydro-projects in Virginia. We must recover our ability to control those inalienable property rights we enjoy under elective based state and local governance. We must CURB the unconstitutional governing power of FERC, which has eviscerated the constitutional powers of our elected state and local governments.