Smith Mountain Pumped Storage Project No. 2210
Shoreline Management Plan
Steering Committee Meeting Minutes
August 3, 2003
Location, Date, Time, Attendees:
A meeting of the Steering Committee for the development of the Shoreline Management Plan (SMP) for the Smith Mountain Pumped Storage Project was held on Tuesday, August 26, 2003 at American Electric Power’s Rocky Mount office building, in Rocky Mount, Virginia. The meeting began at 9:00 a.m. (ESDT) and were attended by the individuals listed below:
Name Representing
Bill Rolfe Bedford County
Gina Shaw Bedford County
Brent Wills Bedford County
Charles Poindexter Franklin County
Bonnie Johnson Franklin County
Rick Huff Franklin County
Phil Nester Guest of Franklin County
Greg Sides Pittsylvania County
Jeff Graff SML Chamber / Partnership
Mike Turner SML Chamber / Partnership
Ron Willard II SML Chamber / Partnership
Dave Banta Smith Mountain Lake Association
Stan Smith Smith Mountain Lake Association
Steve Campbell Assoc. of Lake Area Communities
Bob Munson VA Dept. of Conservation and Recreation
Bud LaRoche VA Dept. of Game and Inland Fisheries
Preston Smith VA Dept. of Health
Mike McLeod VA Dept. of Environmental Quality
Gregory Theyel Louis Berger Group
Bill Perry Louis Berger Group
Todd Burns AEP
Frank Simms AEP
Liz Parcell AEP
Teresa Rogers AEP
Ron Jefferson AEP
Gregory Theyel welcomed all present. Teresa Rogers thanked the Steering Committee for their comments and indicated that a lot of public comment had also been received. As a result, AEP made changes to the July 3rd draft that best reflect a balance and which will enable AEP to comply with its FERC license requirements. In preparation for the meeting, Teresa noted that committee members should have received the public comment document, steering committee comments, and a copy of the revised Shoreline Management Plan. She noted how the topics would be discussed and that a copy of the plan showing the revisions in red strikeout would be posted on the website along with the Consultation Document and revised Frequently Asked Questions. (Please note the decision to post a document in red strikeout on the website was changed. A final document without red strikeout will be available on the website as it was determined that not all word processing software depicts changes. A red line strikeout hard copy will be available upon request.) Ms. Rogers noted that the press would be available at 4:30 to ask questions of the steering committee.
Regarding fees, Ms. Rogers noted that there would be no annual charge at this time and that there were no plans to recoup the costs on the development of the Shoreline Management Plan. There may be a permit fee in the future but an internal study by AEP will be required in order to be able to justify the expense to the FERC. Stan Smith stated that he could see no way a utility could recover the expenses through permit fees and Ms. Rogers responded that no utility does. Ron Willard II questioned if most shoreline management plans required fees for existing docks. Mr. Theyel responded that utilities covered a range of operations; several charge an annual fee but the majority requires a permit fee only.
Regarding beaches, Ms. Rogers indicated that a property owner with an existing beach may replenish the sand but the sand may not negatively impact others. A responsibility has been placed on beach owner. Bill Rolfe questioned why new beaches could not be allowed in High Density Commercial and Multi-Use areas. Mr. Theyel reminded the group of beach impacts – ecological in that the sand covers habitat and navigational as sand accumulates in shallow areas. Bud LaRoche questioned the possibility of a variance process where the concerns such as significant changes to the project boundary could be mitigated. Jeff Graff suggested that the topic be tabled and reviewed under the variance process.
Regarding shoreline vegetation, Ms. Rogers proposed language that would clarify AEP’s intent. If existing vegetation is sufficient to control erosion and the shoreline is not actively eroding then shoreline stabilization will not be allowed. If there were active erosion then riprap would be allowed. Applicants will be encouraged to plant vegetation to prevent erosion. Mr. Willard questioned if the applicant would have to show pictures to prove active erosion and Ms. Rogers responded that either pictures or a site visit would suffice. Bob Munson indicated that Lee Hill of DCR had suggested changes to the definition of active erosion. Mr. Theyel responded that it was more important for the definition to indicate condition not cause.
Ms. Rogers indicated that Class II riprap was changed to Class I. A discussion ensued regarding how far riprap should extend into the lake. Phil Nester indicated that a trench a couple of feet down would be preferable to minimum elevation. Brent Wills suggested taking “lakeward” out. Mr. Nester sketched an example. Mr. Smith noted that vegetation could be planted below the 795 contour and be effective. Liz Parcell suggested a 2 foot buried toe. It was agreed to reference state and federal regulations, take out minimally lakeward to 792, and include the two foot buried toe. Charles Poindexter inquired as to the meaning of a complete project according to the Army Corps of Engineers. A response indicated that all proposed work must be considered but the work could be implemented incrementally.
Ms. Rogers indicated that numerous issues outside of the SMP were identified. These issues include boat noise, water levels, debris removal, etc. and could be addressed through the relicensing effort or through other organizations. Bonnie Johnson questioned if AEP would work with the localities on these issues. Boat noise, for example, would be a local or state governmental issue. Ms. Johnson asked if there were any items that could be worked on in advance of relicensing. Frank Simms indicated that AEP has and will continue to participate with TLAC and other groups on certain issues but if agency review is required then the study will not be done outside the relicensing process.
Regarding fallen trees, Ms. Rogers indicated that the changes made need agency review. The revised wording does not require a permit but people are encouraged to leave trees attached to the shoreline, as it is good habitat. Mr. Simms suggested that a fallen tree could not be removed in a woody debris area unless a permit is obtained. Both Mr. LaRoche and the committee concurred.
Ms. Rogers indicated that there was still a lot of confusion regarding the 100-foot waterfrontage requirement for future lots and revisions had been made to help clarify the requirement.
Regarding documentation of existing docks, Ms. Rogers noted that AEP would acknowledge the adequacy of documentation. Further, language was added regarding a “ wrongful act……….” Mr. Willard noted that the phrase “may apply had been replaced with “may replace upon obtaining a permit.” Mr. Graff questioned the conditions under which AEP may not issue a permit? Ms. Rogers indicated that AEP has not been arbitrary in the past, nor would they be in the future and that a blank check could not be written.
Regarding the nonconforming language, it was questioned if “footprint” should be defined and the committee agreed that it should be. Rick Huff questioned the 50% rule with an example of replacing the decking of a dock. Mrs. Rogers replied that the dock should be maintained and the property owner shouldn’t wait until the whole deck needs replacing. Mr. Rolfe noted that the document needs to be a document that someone can pick up and interpret and that AEP may have to issue official interpretations. Notes should be kept in order to be consistent and should be used as the basis for future revisions. Ms. Johnson expressed her dissatisfaction with the nonconforming use policy because it is different than the state code. Ms. Rogers noted that the two year limitation had been incorporated into the policy. Greg Sides pointed out a change in the policy that was not carried out throughout the document.
Ms. Rogers explained how personal watercraft would be counted/calculated. There were no comments.
Ms. Rogers explained the current process for issuing dock permits noting that AEP has been issuing permits based on county permits, provided the structure is a boat dock. There is a time line for completion. County permits expire within one year but they can be renewed. Ms. Rogers noted that the AEP permits are not open ended. She further indicated that everything received to date has been sent through the state agency process. It is not known how FERC will look at it. Mr. Simms reminded the Steering Committee that one of the reasons why the plan was undertaken was to eliminate the need to receive FERC approval of projects, especially in light of the fact that they do not have a timeline. Currently there are three projects at the FERC and 10 under state agency review or ready for the environmental assessment.
Ms. Johnson expressed concern regarding the lack of time to review meeting materials. She further noted that the red line strike through didn’t show up on their computers.
Mr. Simms explained the FERC Process for filing the shoreline management plan, noting that AEP will be applying for an amendment to the license. The FERC will either amend article 41 or issue article 42 superceding various portions of 41. AEP will implement those regulations within the SMP for the uses for which AEP is currently allowed to issue permits. AEP will submit the plan to the FERC who will assign a docket number. The document will be considered “filed” once it has a docket number. The FERC will issue a notice indicating that it is ready for environmental assessment. The notice will appear in larger local newspapers indicating that the filing is ready for public comment and requesting intervention applications. Mr. Simms explained that intervention allows a person or organization to receive all letters but the intervener must also copy everyone on the list with his or her correspondence. Mr. Willard questioned the public notice time period. Mr. Simms responded that the public typically has 30 days to comment after the notice. AEP may comment on the comments and FERC may prepare a draft environmental assessment. A notice is then issued regarding the availability of the draft environmental assessment available for public review. This comment period is typically 30-60 days and AEP can make official comments. FERC may come back for additional information. Ultimately, FERC issues a final order. This order could approve the shoreline management plan as filed, or with modifications. If there are disagreements with the Order, AEP and other interveners may file for rehearing. Further information can be found in the Federal Regulations Code 18.
Mr. Simms also indicated that once the SMP has been filed, the FERC might compare the applications that it has received to date with the SMP. Discussion ensued regarding AEP’s position with this possibility and timelines for completion of FERC approved projects.
Ron Willard questioned the transferability of the permit and Mr. Simms responded that the permit language is outside the development of the SMP. Ms. Johnson questioned the plans to resolve the issue and Mr. Simms indicated that AEP is working with its legal department to resolve the issue. Mr. Huff questioned if there is a FERC mandate on what the language would be. Ms. Rogers indicated that FERC requires the licensee to maintain sufficient rights to operate the project. Mr. Simms questioned if the concern was with the transferability of the permit or the property constructed under the terms of the permit. Graff indicated that it was the permit. It was questioned if the permit gives someone the right to construct the structure or a license to occupy the structure or both to construct and occupy and which rights are transferable. Mr. Simms will continue to work with the attorneys to resolve the issues.
Mr. Graff questioned the conditions that would cause AEP to revoke a permit. Mr. Simms explained that the same language is currently within the flowage easement and that there would have to be sufficient cause. FERC could be the cause. Mr. Simms explained that AEP could not revoke a permit for arbitrary reasons. Mr. Graff questioned what protection a property owner has against having a license revoked. Mr. Simms responded the FERC and Mr. Rolfe suggested by maintaining one’s property.
Ms. Rogers indicated that there was public comment regarding low density use. Specifically, some people didn’t like the four types of development allowed in low density especially commercial. They didn’t want the increase in boat traffic. Following discussion, the group decided not to change the uses allowed under the low density use classification.
Regarding the review process of the SMP, both steering committee representatives and the public identified the need to define stakeholders. Ms. Rogers reviewed the proposed language and there were no comments.
Mr. Theyel noted that a mistake had been made in the July 3rd draft regarding the length of docks serving single family uses. The committee had agreed to 80’ but 100’ had been included in the document. Discussion ensued. Mr. Turner noted that more variances would be required with 80’ and that cost dictates the length. Mr. Huff questioned if the language could read 80’ maximum unless water depth is insufficient then 100’. Mr. Simms reminded the group of the challenges of proving water depths and recommended 100’. There were no comments.
Regarding the range of dock sizes, allowed Preston Smith expressed concern for an enormous dock being used for multiple lot owners. Ms. Rogers indicated that the 3rd slip requires health department involvement. Mr. Nester suggested that the language be amended to add “as set forth in the provisions of this plan.”
Mr. Sides noted that the setbacks had been eliminated and should be reinstated. All agreed. Mr. Willard indicated that he had hoped for better wording. Mr. Simms indicated that the information must be shown on a plat. Mr. Willard indicated that lines were not shown in the past and the developer is allowed to relocate them so that the dock doesn’t interfere with the neighbor and access is improved. Mr. Willard suggested that a range be incorporated into the SMP.
Ms. Johnson questioned the possibility of someone owning land under the water and not allowing someone to build because of the titling insurance. Ms. Rogers questioned how Franklin County currently addresses the situation and Ms. Johnson responded that land issues are left to the landowners to resolve.
Mr. Simms noted that there had been a question regarding the mapping at the open house and as a result he had agreed to run the maps using 494’ instead of the 500’ parameter to see if there would be a change in the classifications. The 494 footage represents the low side of the mapping’s degree of accuracy at +/- 3 feet. An increase in 2 miles of high density multi-use primarily upstream of the Smith Mountain 4H Center resulted. A balanced analysis would also include running the maps at 506’. Mr. Poindexter questioned the boat density in the area. Bill Perry added that the boat density map was incorrect and will be revised. The data behind the map is accurate; it did not get translated correctly. Mr. Nester questioned which document (the plan or the map) would be binding on the classification. Mr. Simms indicated that the mapping is the basis for the decisions to be made. Mr. Nester questioned how to submit a request for reclassification to AEP. Mr. Simms responded that the burden of proof would be to show where the 795 is located. Mr. Huff explained that Franklin County believes that the distance is greater at the 4H than the 500 feet. Mr. Poindexter added that this area is closest to the greatest number of residents in Franklin County and the county seat and could potentially be a recreational area if designated high density multi use. A discussion on the differences between the aerial mapping distance and Mr. Nester’s surveyed distance ensued. Mr. Simms explained how shadows, views, and conditions of the day all play into the inaccuracies of aerial mapping. The committee agreed to have the classifications on the maps be based on the 494 distance.
It was questioned whether the 4-H was appropriated designated since it is privately owned and not open to the public. The committee reviewed the definition of the public use classification and noted that it included non-profit organizations. A suggestion to change the shoreline classification title from public to public/non-profit was made. The committee was satisfied with the public use classification definition that included operation by non-profit organizations.
Ms. Rogers reviewed changes made to the variance process including notifying the county. Mr. Huff questioned the impact of an agency’s negative comment. Mr. Munson replied that the negative comment could identify a problem that could be mitigated or provide for an opportunity to explore options that might lessen the impact. Mr. Willard asked that AEP include a variance timeline with low density variances. Ms. Rogers shared her reasons for not including a timeline. Mr. Rolfe suggested language such as “handled in a timely manner.” Ms. Rogers explained that guidelines for time periods for review could be established after 3 or 6 months. It was noted that State law governs the timelines for the counties; they must respond within 60 days.
Mr. Sides questioned if the agency review process intentionally omitted the counties? Ms. Rogers noted that revisions would be made to correct to language.
Mr. Graff questioned if the public comments will be available for review during the variance process. Mr. Simms noted that all comments would be available for public review. Mr. Willard gave an example whereby two adjacent property owners encroached upon a middle lot and questioned how AEP would address the situation and the potential complaints regarding navigation. Ms. Rogers noted that all aspects would have to be taken into consideration when reviewing variance requests.
Mr. Huff noted that the document would be more helpful if the variance process was outlined and included timelines, etc. Ms. Rogers noted that the application would include a checklist, process, drawings, etc. It was questioned if all the uses were captured in the variance process. Ms. Rogers agreed to review the wording. Mr. Nester suggested that wording be added to the FERC variance process to include appeals. Ms. Simms noted that the appeal process was established by FERC. Mr. Poindexter questioned the appeal process for non-FERC projects. Mr. Simms explained that the applicant could reapply. Mr. Perry noted that the Federal Power Act does not allow FERC to review appeals to licensee decisions. It was agreed that beaches should fall under the agency review variance process.
Mr. Simms proceeded with his understanding of the implementation meeting with the counties, noting that people will apply to AEP for permission to put in a dock. Upon AEP review and assuming approval, the permit will be forwarded to the counties for additional action e.g. zoning and building permits. Mr. Rolfe noted that citizens will be inconvenienced and the county does not have the right not to issue zoning and building permits. Ms. Rogers noted that AEP wanted to avoid the counties’ issuing a permit first and then having AEP deny the request. Various options were discussed. Mr. Simms noted that AEP as the licensee has every right to implement every aspect of this plan with the exception of the items that fall outside of Article 41. The timing of implementation was discussed. Mr. Campbell reminded the group that the FERC representative said that the plan should be and was expected to be implemented immediately upon submittal. Mr. Munson suggested that the applicant start with the counties for zoning, proceed to AEP for approval, and go back to the county for the building permit. Mr. Huff questioned if AEP would fund the additional administrative burden. Section 15.2-1226 of the Code of Virginia of 1950, as amended was discussed. This section states that “such ordinance shall not conflict with the provisions of the Uniform Statewide Building Code or with the rights and responsibilities accorded Appalachian Power Company under its federal license to operate the Smith Mountain Project.”
Following a break to discuss the code section further, AEP indicated that
its preference is for people to start with AEP approval. Mr. Simms asked
for comments. Bill Rolfe indicated that he wants written notification
from AEP prior to implementation letting them know that AEP will be implementing
the shoreline management plan. Bedford will let the applicants know that
they need an AEP permit. The counties will develop a sheet that they will
sign that says that the applicants need AEP approval. They will fax a
copy of this sheet to AEP. The counties will follow up with ordinance
changes. AEP’s letter will include language that indicates that AEP has
the right to implement the plan now and will reference Section 15.2-1226,
the effective date and AEP contact information. Mr. Willard questioned
if there would be a time frame reference for responding to the applicant. It
was noted that if the application were acceptable then it would be passed
on to the counties. If the application is deficient, additional information
will be requested. If, based on AEP review, the application is denied;
a reason for denial will be given. AEP’s permit will be contingent on
approval of county and agency permits. The applicant will get the permit
and will need to take it to the counties. A multiple page form is expected. The
drawing must be stamped approved. The County will have a copy of the AEP
permit, zoning permit and building/erosion/etc. The draft will be changed
to note that approvals need to be obtained before a permit is issued and
that the permit is contingent on the applicant receiving the appropriate
permits. The committee suggested that another location is needed for taking
applications besides Rocky Mount.
Bedford County indicated that final building inspections could be sent to AEP. Bedford County expressed a desire to have dock permits emailed if possible. AEP indicated that they would keep the files and fax to the counties anything they need.
Open Comment Period:
Mr. Poindexter noted concerns with floating walkways, mobile home parks, and ramps in low density. Regarding mobile home parks, Ms. Johnson noted that they are high density and should therefore be classified as high density multi use and not low density use. Mike Turner noted the land would be more valuable as high density multi use. Ms. Johnson noted that health problems could be corrected. Mr. Nester indicated that the number of slips is high density numbers. Mr. Perry explained that upland density was not a parameter; the shoreline was designated according to the type of dock on the property. Shorelines with single docks were designated low density use. Shorelines with multi use docks were designated as high density multi use. Mr. Simms explained that there could be no preferential treatment. Ms. Rogers explained that the committee might have to agree to disagree.
Regarding ramps in low density use, Mr. Poindexter indicated that they should be allowed. Mr. LaRoche indicated that concrete ramps don’t provide habitat. Mr. Willard suggested that ramps be allowed with a certain amount of shoreline. Mr. Munson indicated that it seemed senseless to allow them every 100 feet. Mr. Willard suggested they be allowed through the agency review process. Ms. Johnson questioned how frequently ramps should be developed. Mr. Munson explained that it wasn’t the frequency but that a lot could be done to minimize the impacts of erosion, traffic impacts, etc. Mr. Simms noted that the impacts to boating density in the area would have to be addressed. Mr. Munson suggested that one ramp serving a community could be beneficial. Mr. Theyel suggested that ramps in low density uses be added to the agency variance list. There were no comments.
Mr. Poindexter noted that floating walkways should to be 8 feet wide for stability. The need for 8-foot walkways for stationary docks was discussed as well including cost and potential disturbance to the shoreline. Mr. Turner indicated that floating walkways were not a big factor to him; 99% of the docks have walkways to stationary docks. The committee agreed to allow 8 foot floating walkways. Walkways to stationary docks remain unchanged.
Ms. Johnson noted that she was still concerned that a socioeconomic study and a recreational study had not been done. Mr. Simms questioned what AEP could compare it to and explained that he didn’t see it as applicable. Mr. Perry noted that the FERC might do it as part of the environmental assessment. Further the recreational component could be done through the relicensing effort. Ms. Johnson explained that the scope of services indicated an update to the recreational study. Mr. Simms responded that the recreational study had been incorporated into the plan. Ms. Johnson noted that the other items listed in the scope of study e.g. additional recreational needs were not addressed and Mr. Simms indicated that comments could be made to the FERC.
Mr. Rolfe questioned the economic impact of the plan on the lake. Mr. Simms explained that if the project were not developed, an economic impact study might be needed but AEP is not stopping development. The Chamber has suggested it and there is a presumption on their part that there will be a negative impact as a result of the plan. Mr. Willard commented on the potential mixed uses at the bridge. Mr. Rolfe explained that it would be in the developer’s best interest to utilize high density commercial for high density commercial or multi use. A suggestion was made to urge FERC to include an economic study in the NEPA process.
Ms. Johnson questioned the opportunities for high density commercial elsewhere on the lake besides the locations already designated. Mr. Perry explained that there was the variance process. Mr. Rolfe suggested the developer get the property rezoned first before going to FERC in order to increase the odds. Ms. Johnson questioned if the parameters themselves would have created any additional high density commercial areas? Mr. Graff explained that other than the bridge area there really could be no other commercial.
Mr. LaRoche expressed concern regarding the notification to AEP for dredging 25 cubic yards or less and the lack of definition for maintenance dredging or under what conditions it could be allowed. Mr. LaRoche was prompted for language. He indicated that he didn’t want the original bottom disturbed or stumps removed. He indicated that with notification there is no enforcement. Mr. Graff suggested that the applicant give 10 working days prior notice so that the site could be inspected, if desired. It was questioned if AEP could stop the activity if there was a problem. Mr. Simms indicated that if the activity is not in the plan then the activity could be stopped.
Mr. Poindexter questioned if the upper Blackwater had been changed to conservation/environmental and Mr. Perry responded that it had been changed.
Regarding the IMZ process, Mr. Huff suggested that instead of listing specific names, the appropriate “state regulatory agency” should be stated. Mr. Huff also suggested that the language regarding the island be amended since there is no need to protect the islands differently than other shoreline areas.
Discussion ensued regarding consultation with VA SHPO, commercial projects in no wake zones, setbacks for fishing piers, and how the 50-foot fairway requirement if no slips was derived. Mr. Graff noted that he had two items that he would like reworded and will send the proposal to Ms. Rogers.
Mr. Simms noted that the document will be on the website and will be mailed
to the committee. He indicated that it had been a long process and thanked
everyone for participating.
At 4:30, representatives from the media arrived to ask questions.