This article first appeared in the St. Louis Beacon, Nov. 23, 2011 - WASHINGTON - It's a power play over a power plant, a property dispute that has spilled over from the Lake of the Ozarks to the corridors of Capitol Hill.
The shoreline-property controversy involving Ameren Missouri and the Federal Energy Regulatory Commission has unleashed a hornet's nest of political dissent in mid-Missouri, where the future of more than a thousand homes and condos had appeared to be in question.
Despite Ameren's pledge last Friday to take a key step towards settling the property issue within months, Missouri's U.S. senators say they still intend to pursue measures in Congress that aim to protect the lakeside property owners and explicitly require FERC to consider private property concerns in its future cases.
"We tried to build a fire under FERC, and I hope we have," U.S. Sen. Roy Blunt, R-Mo., told reporters. He said the Lake of the Ozarks dispute needs to be settled "sooner rather than later, and I will continue to keep the pressure on all parties involved." The state's senior senator, Claire McCaskill, D-Mo., had similarly blunt words, promising "to keep things moving in the right direction until this is resolved once and for all."
McCaskill and Blunt disagree on many issues, but they have worked in tandem to try to pressure FERC and Ameren to solve the property issue that came to the fore in July.
Both senators leaned on FERC to refine its original order, which it did on Nov. 10 -- clarifying that it "has not required shoreline homes and structures with valid deeds, permits and easements to be removed." Its new order directed Ameren to redraw the boundaries for its "shoreline management plan" by June 1.
Last Thursday, the senators met separately with Ameren Missouri chief executive Warner Baxter, arguing for a faster resolution for property owners at the lake. The following day, Ameren promised to speed up the revision of its shoreline boundaries, saying it planned to submit it to FERC "in the first quarter of 2012."
"We understand the heightened concerns of affected property owners and others regarding this issue," said Jeff Green, Ameren's "shoreline supervisor." Once that draft is finished, property owners and other stakeholders will have 30 days to comment, and Ameren will add those comments and send the new proposal to FERC. A FERC official said the commission's review would likely be expedited, but set no time limit.
Both Blunt and McCaskill called Ameren's faster timetable "a step in the right direction." Blunt added that he would prefer that the utility file its revision soon in the first quarter, because FERC's June deadline "is simply an unacceptable amount of time for Lake residents to wait." McCaskill said in a statement that she would "continue listening to families and business leaders on the ground, and to keep things moving in the right direction until this is resolved once and for all."
Is Legislative Action Still Needed?
Despite the hopeful signs, both senators say they will continue to pursue legislative options that would possibly give the lake landowners more certainty. Last month, they jointly introduced a bill called the Landowner Protection Act.
The bill would amend the Federal Power Act to bar FERC from issuing any shoreline management plan that requires the removal of structures along the lake unless they were built "in bad faith" within a power project's boundary. A matching bill in the U.S. House is sponsored by every member of Missouri's delegation.
And last week, Blunt filed two possible amendments to the Energy and Water Appropriations bill -- cosponsored by McCaskill -- that also aim to limit FERC's ability to order to removal of private structures:
The first amendment would direct Ameren to redraw the current shoreline boundaries at the Lake of the Ozarks at the 662-foot contour, reflecting the lake's changing water levels over the past 80 years. This aims to limit FERC's ability to issue an order to remove structures in the area until Ameren submits the revised project boundary. It would also limit FERC's ability to reject applications as long as power generation is preserved.
The second, more general amendment would modify the Power Act by redefining what can be considered a "project purpose." It would change current law to ensure that FERC includes the consideration of "private landownership and private land use" within a power project's boundaries. FERC now recognizes public recreational use of land, but not private ownership.
"This is a good opportunity to look at FERC and the way FERC sees the world," Blunt told reporters. "The idea that FERC puts priority on recreational access but not on private property rights is wrong-headed." He added that he is "absolutely insistent that people who own property and have been paying taxes on that property and have every reason to believe that they owned it.... get title to that property."
The problem is that the FERC issue may not be deemed germane to the Energy and Water Appropriations bill, whose schedule for Senate consideration is unclear. If the amendments can't be offered as such, Blunt said they "may have to wind up to be stand-alone pieces of legislation."
Blunt added that "if FERC and Ameren can solve both of those problems before I do it legislatively, that's OK with me too. But I doubt if FERC is willing to solve the problem of private ownership unless it's included in their mandate. So I'm going to continue to work on those."
McCaskill plans to keep working with Blunt and property owners until the situation at the lake is completely resolved, a spokesman said Tuesday. That includes pursuing the Landowner Protection Act as well as the two amendments -- "unless it becomes certain that these measures are not needed because landowners have been fully protected at the Lake," said the spokesman, John LaBombard. Despite the progress made so far, he said, "more work remains" to be done on the issue.
Ameren, Ferc Say They Intend to Move Quickly
In its statement Friday, Ameren said it is "strongly considering a proposal to lower the Project Boundary to an elevation of 662 feet with additional revisions for those existing residential dwellings below the 662 elevation." That would exempt most of the houses and other structures that otherwise might be threatened, experts said.
FERC officials told reporters on Nov. 10 that they expected that the revised boundaries would ease homeowners' fears by excluding most privately owned lakeside structures that might have been classified as "encroachments." FERC Chairman Jon Wellinghoff, predicting that Ameren would quickly comply with the new order, said in a statement that he was "confident that today's decision will bring clarity to residents along the shoreline."
The shoreline dispute involved more than 1,200 residences as well as 2.800 docks, gazebos and patios that appeared to be considered as "encroachments" because they violated a buffer zone owned by Ameren. When FERC granted Ameren a new license in March 2007 to continue operating its Osage Hydroelectric Project at Bagnell Dam, the commission insisted that the utility draw up a plan to manage the 1,150 miles of lake shoreline within the project's boundaries. Ameren submitted the plan a year later and FERC approved it in July, with some changes.
A political firestorm broke out after letters to property owners this summer suggested that "encroachment" structures -- many of which had been built decades ago, under the electric company's easements, and with valid permits -- should be removed "in a timely manner." In late August, Ameren petitioned for a rehearing, asking FERC to give the utility two years to draw up revisions to project boundaries. FERC responded with the new order this month.
Earlier this month, FERC officials took no position on the Senate and matching House bills, but said its previous order had been "misinterpreted," and it mainly blamed Ameren for failing to address property-related problems in its original shoreline management plan. FERC issued a fact sheet to explain the order, and officials sought to reassure lakeside property owners.
"Neither today's order ... or the July 26th order had any effect on an owner's property rights that had been conferred by a valid deed, permit or easement," said Jeff Wright, director of FERC's Office of Energy Projects.
"Further, those accessory structures -- patios and gazebos, for example -- that were built prior to March 28, 2008, and that conform to Ameren's permitting guidelines, will be allowed to remain, provided that the owners have a permit - or will apply for and obtain a permit from Ameren."