posted Sep 29, 2010 6:03 AM by Site Administrator
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updated Sep 29, 2010 6:09 AM
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ORDER ON REHEARING AND CLARIFICATION (Issued September 16, 2010)
1. On December 15, 2009, the Director of the Office of Energy Projects (OEP) issued a new license to Appalachian Power Company (Appalachian Power)1 under sections 4(e) and 15 of the Federal Power Act (FPA)2 for the continued operation and maintenance of the Smith Mountain Pumped Storage Project (Smith Mountain Project), a 636-megawatt (MW) hydroelectric project located on the headwaters of the Roanoke River in Virginia. The Tri-County Relicensing Committee (Committee)3 filed a timely request for rehearing of the order. For the reasons discussed below, we grant rehearing in part and clarify the license in certain respects.
Read the Entire Rehearing Order under attachments |
posted Jan 17, 2010 7:36 AM by Site Administrator
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updated Jan 17, 2010 7:54 AM
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TCRC Argues:
1. The OEP Director Did Not Have Authority To Issue The License Order In This Contested Proceeding.
2. The License Order Is Not Best Adapted To A Comprehensive Plan Of Development As Required By FPA Section 10(A)(1). a. The License Order Is Not a Plan for The Desired Future Conditions of Beneficial Uses of the Roanoke Basin.
b. The License Order, including Its Record, Does not Contain Findings About the Probable Future Conditions of Beneficial Uses Through 2040.
3. The License Order Is Not Supported By Substantial Evidence, And Is Arbitrary And Capricious, And Otherwise Not In Accordance With Law In Violation Of FPA Section 313(B) And APA Sections 556- 557, 706(2)(A), (D) And (E). a. The License Order Relies on Incomplete Evidence and Does Not Cite Specific Evidence Regarding the Impacts of the New License Articles Over the Next 30 Years.
b. The License Order Relies on Disputed Evidence Without Adequate Explanation.
c. The License Order’s Fails to Make Specific Findings and Rule on Specific Objections.
4. OEP Staff Did Not Consider A Reasonable Range Of Alternatives Or Analyze Project Impacts Over The Term Of The New License, As Required By The National Environmental Policy Act Sections 102(2)(C) And 102(2)(E) And Implementing Rules.
5. The License Order Does Not Insure That The New License Will Not Jeopardize The Continued Existence Of Roanoke Logperch For The Next 30 Years.
6. The Commission Should Deem TCRC’s Offer Of Settlement To Be Uncontested And Proceed To Consideration Of Its Merits.
TCRC REQUESTS RELIEF
Given the deficiencies of the License Order and FEIS as described above, we request that the Commission vacate the License Order and direct OEP Staff to do the following:
(1) Supplement the record with regard to the impacts of the new license over the next 30-50 years; (2) Explain the basis for reliance on any piece of evidence where competing evidence exists in the record; (3) Explain the logical connection between evidence relied upon and finding(s) made; (4) Make specific findings regarding the future condition of affected resources; and (5) Initiate formal consultation with the FWS under ESA section 7(a)(2) regarding project impacts on the Roanoke logperch.
We also request that the Commission deem our Offer of Settlement uncontested and proceed to consideration of it on its merits. In the alternative, we request the Commission notice the Offer of Settlement, provide for public comment, and convene a settlement conference in the next 30-60 days.
To view TCRC's Request for a rehearing click on the link below.
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posted Jan 17, 2010 7:23 AM by Site Administrator
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updated Jan 17, 2010 8:41 AM
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This license authorizes no new capacity, and only a minor amount of new environmental enhancement measures. As discussed below, I am issuing a new license for the project.
The Commission issued the original license for the project on April 1, 1960, and that license will expire on March 31, 2010.
On September 24, 2009, the Tri-County Committee filed a letter with the Commission stating that it intended to submit a motion or petition, including expert testimonies, by October 31, 2009, showing that the staff’s recommended license articles in the final EIS will probably not be effective over the license term to: (a) control the spread of non-native aquatic vegetation in project waters; (b) prevent erosion from lake shorelines; and (c) manage the accumulation of debris and sedimentation from tributary streams, to the extent needed, for public safety.
The Tri-County Committee stated that it intended to propose specific changes to the recommended license articles to assure effectiveness. In addition, the Tri-County Committee stated that it intended to submit an Offer of Settlement, as well as request a settlement conference to seek resolution of the issues. On December 9, 2009, the Tri-County Committee filed its motion to supplement the final EIS and Offer of Settlement. The supplement generally takes issue with the cumulative effects analysis in the final EIS, and recommends changes to the draft license articles that were appended to the final EIS.
The Tri-County Committee has been an active participant in this licensing proceeding since Appalachian Power initiated pre-filing consultation with state agencies in October 2002. The Tri-County Committee actively participated over the years in the Integrated Licensing Process, as well as the licensing proceeding that was initiated with the filing of the license application. Moreover, it filed a motion to intervene in response to the Commission’s August 7, 2008 notice, and it filed comments on the draft EIS raising similar concerns, which were addressed in the final EIS and further addressed below. While the Tri-County Committee contends that their filing provides new evidence that shows that the proposed new license articles will not protect and enhance the beneficial uses of the project over the term of the new license, for the most part, it simply reiterates the Tri-County Committee’s comments in its previous filings. The issues it raises were generally addressed in the response to comments section of the final EIS. Moreover, this order further addresses and modifies certain aspects of the draft license articles included in the final EIS to address the areas of concern raised by the Tri-County Committee in its Offer of Settlement filing. Therefore, any delay in issuing this license is not warranted.
LICENSE TERM Section 15(e) of the FPA,98 provides that any new license issued shall be for a term that the Commission determines to be in the public interest, but not less than 30 years or more than 50 years. This license authorizes no new capacity, and only a minor amount of new environmental enhancement measures. Consequently, a 30-year license for the Smith Mountain Project is appropriate.
Because the term of the current license does not expire until March 31, 2010, this license order is not effective until April 1, 2010.
This order constitutes final agency action. Any party may file a request for rehearing of this order within 30 days from the date of its issuance, as provided in section 313(a) of the FPA, 16 U.S.C. § 8251 (2006), and section 385.713 of the Commission’s regulations, 18 C.F.R. § 385.713 (2009). The filing of a request for rehearing does not operate as a stay of the effective date of this license, or of any other date specified in this order. The licensee’s failure to file a request for rehearing shall constitute acceptance of this order.
Jeff C. Wright Director Office of Energy Projects
Click on Link Below to Download the New License for Smith Mountain |
posted Dec 10, 2009 5:09 AM by Site Administrator
The following is an introductory summary of TCRC's motion. To download and read the entire filing, go to the bottom of this page and click on the Download Link
TRI-COUNTY AEP RELICENSING COMMITTEE’S MOTION TO
SUPPLEMENT THE FINAL ENVIRONMENTAL IMPACT STATEMENT AND OFFER OF SETTLEMENT
Pursuant to 18 C.F.R. §§ 385.212, 385.602, the Tri-County AEP Relicensing Committee (TCRC) hereby files this Motion to Supplement the Final Environmental Impact Statement and Offer of Settlement.
The licensee and TCRC have made multiple filings regarding licensee’s responsibility for the baseline condition of resources affected by the project. The Final Environmental Impact Statement (FEIS) resolves, at least from the Staff’s perspective, what the licensee’s responsibility is for the baseline condition of resources affected by the Project. But the FEIS does not provide adequate analysis regarding the future condition of beneficial uses over the course of the new license if the proposed new license articles are adopted. By this Motion we seek to correct this deficiency in the FEIS.
Specifically we address the adequacy of Commission Staff’s analysis of the direct, indirect and cumulative impacts of Staff’s preferred alternative under the National Environmental Policy Act (NEPA) section 102, 42 U.S.C. § 4332. We address the adequacy of the proposed license conditions stated in Appendix B of the FEIS to protect and enhance the public’s interest in beneficial uses of the Roanoke River pursuant to Federal Power Act (FPA) section 10(a)(1), 16 U.S.C. § 803(a)(1), over the term of the proposed new license. We respectfully submit that the FEIS does not make the necessary findings to demonstrate that the proposed new license articles will protect beneficial uses into the future. We also address the adequacy of the FEIS’s findings under the Administrative Procedures Act (APA) sections 557(c) and 706(2)(A).
This filing is organized into two parts. In Part I we provide citations to the existing record and provide new evidence which shows that the proposed new license articles will not protect and enhance beneficial uses over the term of the new license. In Part II we make an offer of settlement. Part II relies on Part I to describe the deficiency of the proposed new license conditions and explains alternatives which we submit will better protect and enhance the future condition of beneficial uses. We provide the following additional documentary evidence in support of this motion: letter from Pam Dinkle, TLAC, to TCRC (Nov. 6, 2009) (Attachment 4); (2) letter from James P. Kirk, Ph.D to TCRC (Sept. 29, 2009) (Attachment 5); and (3) letter from P. Lloyd Hipkins to Pam Dinkle, TLAC (Oct. 2, 2009) (Attachment 6).
DESCRIPTION OF MOVANTS
The TCRC represents Bedford, Franklin, Pittsylvania, and Campbell Counties, all of which border the project. The TCRC has been an active participant in this relicensing proceeding. On October 6, 2008, the TCRC filed a timely Motion to Intervene and proposed new license conditions in response to the Notice of Readiness for Environmental Analysis. See eLibrary 20081006-5033. On December 11, 2008, we provided additional information in support of our recommendations. See eLibrary no. 20081211-5032. On May11, 2009, we filed comments on the Draft Environmental Impact Statement (DEIS). See eLibrary no. 20090511-5225.
The counties that make up the TCRC have played an active role in relicensing because they have dedicated significant resources under the existing license to maintaining project waters and lands and protecting the beneficial uses that occur there. As discussed in Part I, infra, Appalachian Power’s management plans and the FEIS make implicit assumptions as to what the counties will do under the proposed new license. We provide this background on the counties’ role under the existing license to provide context for the FEIS’s assumptions as to our role under the new license, as well as context for our Offer of Settlement which describes the role we propose to play under the new license.
Since 1968 the local governments that surround the Smith Mountain Project and several non-governmental organizations (NGOs) have played an active role in maintaining beneficial uses and public trust resources at the project. Initially Bedford, Franklin and Pittsylvania County and local businesses formed a partnership with Appalachian Power, known as the Reservoir Committee. This committee worked to resolve issues such as debris control and navigational aids in partnership with Appalachian Power.
In 1986 the Reservoir Committee was dissolved and replaced by the Smith Mountain Lake Policy Advisory Board (PAB). The PAB’s purpose, as stated in the Cooperative Agreement among the Counties, was "to be responsible for advising the local governments on matters involving the lake, generally and specially matters involving planning, development and the natural and human environment". See “Organizational Cooperative Agreement for the Smith Mountain Lake Policy Advisory Board (July 1, 1986) (Attachment 1); Memo re: Smith Mountain Lake PAB (May 29, 1992) (Attachment 2).
In 2000, the PAB was dissolved and the Tri-County Lake Administrative Agency (TLAC) was formed and a new Cooperative Agreement between the Counties of Bedford, Franklin and Pittsylvania was approved to address lake related issues such as debris, aquatic vegetation and navigation. See “Organizational Cooperative Agreement Creating the Tri-County Lake Administrative Commission” (December 2000) (Attachment 3). Until September 2003, local governments functioned as regulators for in-project construction of docks and piers, as there was no other regulation in-place for the project. In addition to TLAC, non-governmental organizations (NGOs) like the Smith Mountain Lake Association (SMLA), and the SML Volunteer Marine Fire, Rescue and Dive Department organized for lake stewardship (water quality) and public safety. In recent years, the Leesville Lake Association (LVLA) also was formed to address critical issues of debris and water quality in the lower reservoir.
This brief background shows that local governments and NGOs successfully and effectively filled the voids in regulation and management to address critical environmental and public safety issues at the project. We are uniquely qualified in these areas as we developed both expertise and structure to address critical issues the licensee did not. As stated in Part II, infra, we believe it would beneficial to the project for TLAC to continue to play a significant role in maintaining beneficial uses at the project during the term of the new license. However, in order for TLAC to do so, there must be a comprehensive agreement between Appalachian Power and TLAC. |
posted Aug 11, 2009 6:50 AM by Site Administrator
As detailed below, the Staff Alternative includes modifications to Appalachian Power’s proposed plans. The additional staff measures include the following: - modifying the proposed Erosion Monitoring Plan to (a) add monitoring locations along the shorelines of Smith Mountain and Leesville lakes, (b) specify quantitative method(s) for monitoring erosion downstream from Leesville (e.g., bank pins), and (c) require erosion monitoring along the Roanoke River for more than 1 year and cover the reach from the Leesville dam downstream to Altavista, VA;
- modifying the proposed Sedimentation Monitoring Plan to (a) include a requirement that Appalachian Power identify the types of actions it would implement and under what conditions it would propose dredging at a recreation site, and (b) add Craddock Creek, Mitchells Cove, and areas near Mariners Landing to the list of areas to be monitored because public use of these areas is affected by sedimentation;
- modifying the proposed Water Management Plan to include (a) the provisions of Conditions D (Instream Flow Conditions), E (Adaptive Management),7 and G (Instream Flow Monitoring and Reporting Conditions)8 of the Certification, (b) a revised study plan for Part I, Condition D.3 of the Certification (Study of Auto-Cycling versus Continuous Release) that modifies the study design (i.e., a study duration of 3 years, unless data collected in year 1 indicates that monitoring in years 2 and 3 is not needed) to address effects on the Roanoke River from Leesville downstream to Altavista, a level-logger study on the lower reaches of Goose Creek, and fieldwork (empirical data collection) in years 2 and 3 of the study), and (c) a requirement to consult with appropriate entities regarding how the forecast model would be updated between the 5-year review cycles;
- modifying the proposed Water Quality Monitoring Plan to include (a) the provisions of Conditions F.1 (Water Quality Enhancement Measures) and F.4 (Feasibility of Measures to Enhance DO) of the Certification, (b) a more frequent reporting procedure, and (c) developing a plan to monitor water quality in Smith Mountain and Leesville lakes;
- modifying the proposed Habitat Management Plan to include (a) certain Virginia Department of Game and Inland Fisheries-recommended editorial revisions, (b) a stipulation that proposed habitat projects not be limited to certain areas, (c) photographic documentation as part of the monitoring program, (d) marking large habitat projects as “fish attractors,” and (e) development of educational material;
- modifying the proposed Aquatic Vegetation Management Plan to include (a) a procedure for notifying adjacent landowners regarding the treatment to take place prior to its implementation, with the notification period to be worked out by the Aquatic Vegeation Technical Review Committee, (b) a requirement that the report filed by the Licensed Applicator identify the type of herbicide used in any treatment, and (c) a provision for Appalachian Power to control invasive aquatic vegetation at public boat ramps and other public areas, where determined appropriate;
- modifying the proposed Roanoke Logperch Enhancement Plan to stipulate that the implementation funds ($50,000) be adjusted annually by the Consumer Price Index;
- revising the proposed Recreation Management Plan (and filing it for Commission approval) to include (a) ensuring access at public boat ramps that are project facilities and that are the responsibility of Appalachian Power (including those sites maintained by the Virginia DGIF) by lengthening the ramps, dredging, or some combination thereof, (b) installing permanent toilets at all public recreation sites that are the responsibility of Appalachian Power, (c) assessing the appropriateness of providing picnic pavilions at three public recreation sites, (d) providing between 63 and 70 parking spaces at the Hardy Ford Public Boat Launch, (e) a procedure to determine the need for additional recreation facilities, in addition to the three facilities proposed by Appalachian Power, that includes conducting an assessment of the feasibility of providing amenities at five sites around the project, (f) developing procedures for managing recreational use of the islands on Smith Mountain Lake, (g) surveying recreation use on weekend days
- modifying the Certification’s required study of auto-cycling versus continuous releases to account for the influence of altered fish populations on fishing effort and success;
- modifying the proposed Aids to Navigation Management Plan to include (a) installing and maintaining a lighted navigation system on Leesville Lake, and (b) coordinating the plan with the Aquatic Vegetation, Recreation, and Debris Management Plans;
- modifying the proposed Debris Management Plan to include (a) consultation with the Debris Technical Review Committee, and (b) development of procedures for monitoring and controlling debris, from Memorial to Labor Day, at public swimming beaches, the public recreation areas maintained by the Virginia DGIF and Appalachian Power, and other areas, as appropriate; and
- implementing the PA, executed on July 23, 2009, that requires Appalachian Power to develop an HPMP to protect historical properties and other resources affected by, or potentially affected by, the continued operation of the Project.
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posted Jul 24, 2009 6:25 AM by Site Administrator
TCRC requests USFWS reconsider its position on Logperch Restoration |
posted Jul 24, 2009 6:21 AM by Site Administrator
Read the official document |
posted Apr 13, 2009 10:53 AM by Site Administrator
Public attendance is highly encouraged |
posted Apr 8, 2009 1:46 PM by Site Administrator
Public Comments are Due by 11 May 2009 |
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