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. |