Sept. 17, 2012

Alabama Power changes easement policies on Weiss

By SCOTT WRIGHT

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Citing the existence of “approximately 1,000 potentially habitable, non-moveable legacy structures,” Alabama Power Company earlier this year notified the Federal Energy Regulatory Commission (FERC) of a change in its six-year-old process for dealing with unpermitted structures inside the flood easement around Weiss Lake.

Earlier this month, The Post learned that officials at Alabama Power (APC) received FERC acknowledgement of the changes on Aug, 17, 2012, according to a letter posted on the FERC website.

“We have enhanced our Shoreline Compliance Program to provide structure owners additional options to bring existing structures into compliance with our shoreline permitting guidelines while still protecting our flood easement rights,” said Environmental Communications Specialist Brandon Glover.

APC originally laid out its changes to FERC Secretary Kimberly D. Bose in a letter dated March 14, 2012. The seven-page document, signed by Corporate Real Estate Vice President R. Myrk Harkins, said it was written to “update … Alabama Power Company's continued progress in implementing its Shoreline Compliance Program … as discussed in meetings with FERC Staff in June 2009 and August 2011.”

In the March 14 letter, APC described in detail its enhanced Shoreline Compliance Program (SCP), including a permitting program, structure identification process, a public education plan, a surveillance program, litigation contingencies, and a shoreline preservation initiative.

The letter also made clear APC's intent to focus, at least initially, on “unpermitted legacy structures” along the shoreline of Weiss Lake. (The policy changes will also apply to all other APC reservoirs.)

APC explained to FERC that it plans to use the steps in the company's new SCP to identify any “non-conforming structures” and then “proceed to contacting the owner with the appropriate resolution options.”

The letter identifies categories of potentially non-compliant structures, including recreational vehicles that have not retained their mobile status and permanent structures sitting inside the APC flood easement that may require owners to “retrofit their structure to allow APC to maintain flood storage.”

The letter states that APC “allows five of the six methods (for retrofitting) recommended by FEMA to be used along its reservoirs,” including relocation, demolition, elevation, wet flood-proofing and dry flood-proofing. The sixth FEMA-approved method, using levees or floodwalls, is not permitted by Alabama Power.

The letter lays out a process by which property owners of nonconforming “legacy” structures may bring their structures into compliance with APC by using one of the five approved methods.

“These new retrofit options – available to qualifying structure owners with existing non-compliant structures in the APC easement – are retrofitting methods suggested by FEMA for structures located in floodplains, such as our flood easements,” Glover said. “We are confident that increased shoreline surveillance since 2006 has dramatically reduced non-compliant structures built in APC's flood easement.”

The compliance process also includes “signing an acknowledgment, consistent with any existing permit or a new legacy permit” that declares APC's right to flood the property at any time; agrees to absolve APC of any risk and liability for the structure; and limits any future modifications of the structure to routine maintenance—meaning structures cannot be rebuilt in the easement if they are somehow destroyed or removed.

After the agreement is signed by the owner, the document will be recorded in the office of the Cherokee County probate judge. APC will also require structure owners to provide a certification verifying that the retrofit is consistent with one of the five allowed methods recommended by FEMA.

The letter also describes a plan for “mitigation,” wherein a structure owner “will be responsible for the replacement of lost flood storage capacity” by performing several measures for which the owner would be financially responsible.

Among the mitigation steps are obtaining a survey showing dimensions of any structures and estimating the corresponding loss of flood storage capacity; hiring an engineer, if necessary; and reimbursement to APC “for all measures taken … to recover lost storage capacity.”

Finally, the letter states, if the property owner refuses to cooperate with APC or does not fulfill his duties and obligations under the revised SCP procedures, “Alabama Power may consider pursuing legal measures to achieve conformance.”

“While these retrofits may require further – and perhaps significant – investments by owners of non-compliant structures, they will also provide them with additional options and solutions to achieve compliance that fit their specific situation,” Glover said. “Our goal is to address all new construction that does not comply with our permitting guidelines early in order to prevent new non-compliant structures, as well as addressing existing non-compliant structures by encouraging owners to contact their local Shoreline Management office.”

Several landowners in Cherokee County have already been the subject of litigation by Alabama Power because of unapproved structures inside the Weiss flood easement.

In a reply letter, FERC official Robert Fletcher was mostly complimentary of Alabama Power's planned policy changes.

“Your shoreline compliance program appears to be consistent with your overall responsibilities,” he wrote on Aug. 17.

However, he cautioned APC officials not to let any instances of unresolved “legacy” structures drag out indefinitely.

“You have not proposed a schedule for addressing the encroachments …” Fletcher wrote. “Pursuant to your responsibilities … we expect you to address and resolve encroachments … in a timely manner.”

Going forward, Fletcher mandated that APC submit annual status reports to FERC on the progress of the revised SCP to bring structures into compliance.