Let the Finger Pointing Begin ...

posted Nov 11, 2011, 7:43 AM by Site administrator   [ updated Nov 11, 2011, 8:33 AM ]
  In it's most recent order clarifying the FERC's position on property rights at Lake of the Ozarks, FERC officials are now insisting their order was misinterpreted and that property rights were never in jeopardy.  I find this statement disingenuous, at best.  Read for yourself the original language of FERC's 1st order of July 26th below:

“Lands that are included in the project boundary are needed for particular project purposes.  Non-conforming structures located on lands in the project boundary can have adverse affects on project purposes and the project’s scenic, recreational, and environmental values and are inconsistent with the licensee’s obligations and responsibilities under standard article 5… Further, it should be noted that the Commission does not condone residential development and occupancy of project lands, since such residential use is inconsistent with the Commission’s policy of maximizing public recreational development. Consequently, AmerenUE’s SMP must demonstrate compliance with the Commission’s policies on these issues related to non-conforming structures at the project.  

As such, AmerenUE should be required to develop a plan and schedule to inspect and identify all lands within the project boundary; identify existing non-conforming structures and encroachments; identify the project purposes being served by the underlying lands, and take appropriate actions to resolve such non-conforming structures and encroachments with the goal of removing them from the project boundary.  In the majority of cases, the existing non-conforming structure/encroachment should be removed in a timely manner and the site restored to pre-existing conditions.  However, it may not always be feasible to remove the non-conforming structure/encroachment in the near term due to site-specific circumstances or hardship, and later removal of the encroachment may be warranted.”

Pretty clear, right?  Now here’s FERC reversal:

    Commission staffers said today that a FERC order issued July 26 was misinterpreted to mean that it would order removal of all privately owned structures built within the boundaries of the Osage project. Ameren is responsible for managing the shoreline, which includes ensuring that structures within the project boundary around the Lake of the Ozarks are built with the proper authorizations.

    Property rights owners have in lands within the boundaries of the Osage Project, whether conferred by deed, lease, easement or other conveyance, have not been and will not be altered by FERC's actions, the commission said.

    "I am confident that today's decision will bring clarity to residents along the shoreline of the Lake of the Ozarks," the commission's chairman, Jon Wellinghoff, said in a statement. "I expect Ameren to move quickly to comply with the Commission order. This will resolve all outstanding issues associated with its shoreline management plan and bring this matter to a swift and satisfactory resolution."

    Speaking to reporters on a conference call, John Katz, the deputy assistant general counsel for energy projects at FERC, criticized how development along the Lake of the Ozarks has been handled.  "Ameren, through its inaction, over the last eight years has needlessly raised public concern and has mistakenly led property owners to believe the commission has created the problem," Katz said.

    Clearly this is an abrupt U-turn from FERC -- no innocent misinterpretation even remotely possible.  What is more disturbing is that the language/rationale in the original Lake of the Ozarks order is the same language/rationale we've seen at Crescent Bar Island, and at Smith Mountain Lake regarding Gangplank Pointe, and I'm certain at many other FERC mismanaged projects.

    I would have preferred a FERC statement more along the lines of: "We [FERC] have over-reached our authority and have caused unnecessary stress and concern for the residents surrounding our projects.  Consequently we [FERC] acknowledge our errors of judgment and we [FERC] are going to encourage our licensees to form partnerships with their communities, as was done prior to our [FERC] invention of Shoreline Management; as the community and our licensee are the most knowledgeable and most qualified to regulate their shorelines." 

    Blaming their licensees for FERC mandated content in Shoreline Management Plans does solve the problem, it simply deflects accountability.  So for those licensees struggling to implement FERC mandated regulations in your Shoreline Management Plans, stand by to be "run through your turbines" by your regulator, as it was your fault for accepting their direction.  Unfortunately commonsense did not prevail and this is why we must continue to support the recently proposed federal legislation to get the FERC out of the SMP business -- completely.