WASHINGTON, D.C. – The Federal Energy Regulatory Commission has approved Ameren Missouri’s request to set the project boundary at 662. Ameren will be allowed by FERC to carve out areas below 662’ for existing dwellings and commercial structures. This boundary amendment results in a total of 28,251 acres of land not needed for project purposes being carved from the project boundary impacting approximately 1,500 structures on Lake of the Ozarks. Almost all of the land being removed from the project boundary involves private property where Ameren only possesses flowage easements.
Download Order Amending Project Boundary to 662
In the order amending the project boundary, FERC states, “Ameren asserts that the amendment will eliminate excess land not needed for project purposes, some of which is occupied by privately-owned structures, while retaining the lands necessary for environmental, recreational, historic preservation, and energy production purposes.”
According to a press release from Ameren, the utility company will now move forward with filing Estoppel Certificates in the Recorder of Deeds offices of Camden, Miller, Benton and Morgan counties to clarify ownership.
Download full Estoppel Certificate Pertaining to Easements
While the project boundary line is redefined and continues to be modified, Ameren Missouri still retains rights to the original line below which it claims fee-simple ownership of property.
“The project boundary, which was established in the 1926 license and has not changed substantially since then, generally follows elevation 662’, except in some upstream areas where it follows higher contour elevations (ranging between 663’ and 678’ UED) or irregularly shaped metes and bounds property lines,” the FERC order states. “The boundary along approximately 72 percent of the lake’s shoreline is defined by contour elevations, and the remaining 28 percent is defined by metes and bounds…. These metes and bounds areas, which generally follow old property lines, are those that were originally acquired as flood easements only. In the ensuing years, the remaining rights in these lands were sold and resold. Currently, almost all are privately-held lands.”
In a previous order issued by FERC on November 10, 2011, the federal oversight body explained: “(1) nothing in the SMP, the July 26 order, or in November 10 order has any impact on property rights, so that whatever rights entities 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 action in these proceedings; (2) nothing in the Commission’s orders affects any previously-issued valid permit authorizing a non-project use of project lands or waters; and (3) if an entity has built a structure on lands on which it has a right to do so, that structure is not an encroachment, and the Commission’s orders do not suggest that it needs to be removed. Further, the Commission has no jurisdiction to rule on property rights, which are matters of state law, and any dispute regarding the rights granted by conveyance documents must be resolved in an appropriate court.”
A number of property owners argue they possess deeds showing that they own land to the water (660’ elevation) and argue that the project boundary should be adjusted to exclude the lands that they own in fee.
“Many adjacent landowners comment that Ameren should be required to quit claim the land in question (the land between the project boundary and the 660’ elevation), asserting that they have deeds showing they, and not Ameren, own the land along the shore down to the 660’ elevation and have been paying taxes on this property,” FERC wrote in the footnotes of the order. “However, Ameren asserts that it has earlier deeds showing that it owns the property in question… Any disputes regarding property rights are not within the Commission’s jurisdiction. Rather, they are matters for state courts to resolve. Moreover, property ownership by a third party is not, by itself, a sufficient reason to remove land from a project boundary.”
Gazebos Piers & Boat Docks
The FERC order states, “In its amendment application, Ameren explains that, with the approval of its project boundary proposal, all commercial buildings and residential dwellings will be removed from the project boundary (by means of moving the boundary itself). The remaining structures consist of gazebos, piers, boat docks, etc. Ameren states that it will address these structures in the Encroachment Report required by the November 10 order. Ameren will work with owners of encroaching structures to determine which structures can be permitted under the approved SMP. Ameren will prepare a report that addresses how it proposes to remedy each encroaching structure. The report must be filed within one year of the issuance of this order.”
In a press release issued by Ameren Missouri on June 5, Shoreline Manager Jeff Green said, “By working and collaborating with property owners, agencies and other key stakeholders, we developed and presented a viable solution to FERC. We are very happy with the decision to allow us to lower the boundary. Today’s decision provides closure to the matter.”
In closing, the FERC order states, “Any party to this proceeding may file a request for rehearing of this order within 30 days from the date of its issuance.”
Background
FERC has regulatory authority over specific hydroelectric projects including Ameren Missouri's Osage Project in central Missouri. By law, FERC is charged with balancing power generation and non-power generation values when issuing hydropower licenses.
• On July 26, 2011, FERC issued an order to Ameren Missouri approving and modifying our proposed Shoreline Management Plan for Lake of the Ozarks. In that order, FERC raised concerns about encroachments to the project boundary.
• Ameren Missouri reviewed the order and on Aug. 26, 2011 filed a rehearing request on certain provisions related to nonconforming structures and encroachments.
• FERC responded on Nov. 10, 2011 with a second order. It clarified FERC’s previous position and clearly provided a framework for Ameren Missouri to propose a project boundary change to be submitted for FERC approval.
• Ameren Missouri hosted two public workshops in January 2012 to seek input from resource agencies and the public regarding proposed boundary changes to help resolve the project boundary.
• On Jan. 31, 2012, Ameren Missouri filed a plan with FERC to resolve the issue of encroachments within the project boundary. That plan proposed lowering of the boundary to 662’ plus carving out below 662’ for existing dwellings.
