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Thread: FERC and Property Rights

  1. #1
    Join Date
    Sep 2001
    Location
    SW Virginia
    Posts
    2,520

    Default FERC and Property Rights

    I will try to make this as succinct as possible.

    Not sure how many of you are or have been affected by property easements or shore line management plans (SMP) on the Hydro Electric Lakes/Projects in SC, NC, MD, VA, and WV.

    For property owners on Smith Mountain Lake in SW VA, the SMP and Property Easements are a HUGE deal. Smith Mountain Lake is a Hydro Electric project with Appalachian Power (a subsidiary of American Power) holding the license to operate the "Project." The lake was formed in the early 60s and landowners gave AEP an easement to flood waters up to an elevation of 795' with the ability to flood up to 800'. The area between 795 and 800 is referred to as the project boundary. Without getting into the specifics of the easement or the license regulations, building on Smith Mountain Lake (in the project boundary) went fairly unregulated, except as enforced by local (county) building codes and regulations. This construction was primarily docks to access the lakes from the property owners' land (above 800') to the lake itself (795'), and other supporting buildings. In my case this would be the restrooms, office, marina store, etc. at the marina I manage.

    In 2005, Appalachian Power instituted a Shoreline Management Plan and began to enforce this Plan. Again, I will not get into the minutia of the Plan, or how idiotic a lot of the regulations are. But here is one example. I have some uncovered docks at my marina that were built before the SMP came into effect. Our docks are considered "pre existing, non-conforming". I cannot put a roof over these slips, as this would make the docks "more non-conforming".

    Lawsuits have been filed since 2006 against AEP and the FERC. However, AEP has deep pockets. They have always had the cases moved to Federal Court citing various BS reasons. All cases to this point have fizzled out as AEP has just tied the cases up forever, bleeding the litigants dry. Experts have always said that AEP would not stand a chance in VA State court in interpreting the original easement and validity of the SMP.

    Pressl v. AEP began in 2014. Filed in state court, AEP had it moved to Federal court in the 4th Circuit. After 2+ years, on appeal, a three judge panel in the 4th Circuit unanimously voted to remand the case to VA State Court. The case specifics can be found here http://www.curb-ferc-aep.com/pressl-litigation if you want all of the specifics.

    While AEP still can appeal to the Supreme Court, this case is going back to the state where it belongs. Easement law in VA is very favorable for the landowners on SML, and there is a great chance that the SMP will disappear.

    As the 4th Circuit is made up of VA, WVA, MD, NC, and SC this case could provide precedent for any landowners or groups trying to fight for their property rights against the FERC or powers companies. I know that Lake Norman has had some similar issues in the past, but I am not familiar with any of the specifics on any other Hydro Projects in SC.

    If any of you want any additional information on this case or others here on SML, just reply, and I will try to get the info or answer any questions.
    I went to the woods because I wished to live deliberately, to front only the essential facts of life and see if I could not learn what they had to teach; and not, when I came to die, discover that I had not lived. Henry David Thoreau, WALDEN

  2. #2
    Join Date
    Nov 2001
    Location
    Green Pond SC
    Posts
    557

    Default

    Did they kill all the hydrilla in your lake too?
    - keep South Carolina clean and green - DON\'T LITTER!

  3. #3
    Join Date
    Sep 2001
    Location
    SW Virginia
    Posts
    2,520

    Default

    Hydrilla is not a huge issue here, but they did introduce "sterile" grass carp to help with other invasive vegetation. That happened around 3-4 years ago.
    Last edited by Edisto; 01-12-2017 at 02:56 PM.
    I went to the woods because I wished to live deliberately, to front only the essential facts of life and see if I could not learn what they had to teach; and not, when I came to die, discover that I had not lived. Henry David Thoreau, WALDEN

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