AmerenUE, MDC cross legal swords over fish kill responsibility

JEFFERSON CITY -- In a move that took conservation officials by surprise, AmerenUE has filed an action in federal court to limit its liability for a 45-day- long fish kill at Bagnell Dam on the Osage River. Today, the Missouri Department of

Conservation (MDC) said it had little choice but to file a state claim in the Miller County Circuit Court for the loss to Missouri's resources.

The fish kill started May 23, when Ameren began releasing water from the dam, which creates Lake of the Ozarks. High-velocity water killed 43,937 fish valued at $3,255,580.

More than 20 fish species were affected, but the rare species known as paddlefish suffered most dramatically. Paddlefish accounted for $3, 224,307 of the total loss.

Bagnell and Truman dams hamper natural paddlefish reproduction by blocking the fish's spawning migrations. The Conservation Department rears paddlefish artificially in hatcheries to maintain the population.

Up to the date of the federal filing, MDC and Ameren were engaged in talks to determine how to protect the lake's fishery and compensate for the loss of fish. According to Conservation Commission Chair Howard Wood, "We were looking for a win-win situation that would provide an incentive for Ameren to solve the problem of fish kills at the dam and also fulfill the department's duty to pursue the loss. The Commission had no choice but to proceed with a suit for damages once Ameren challenged the department's authority to seek a legal remedy for the fish kill."

The suit filed by Ameren asks the federal court to declare that the Federal Power Act governs dam operations and supercedes MDC authority to impose liability for damages. The suit also asks the federal court to bar MDC from bringing any action against Ameren to enforce Missouri state law regarding fisheries resources and to enter a judgment against MDC for any costs Ameren incurs in the litigation.

Ameren has previously expressed interest in finding a long-term solution to repeated fish kills at Bagnell Dam. MDC Director John Hoskins said, "We are anxious to find out if this litigation signals a change in Ameren's commitment to this goal."

Hoskins emphasized the importance of minimizing economic losses in the Lake of the Ozarks region. "We are talking about a lot more than 43,000 dead fish," he said. "Tourism and fishing-related businesses pump millions of dollars into this region and support thousands of mid-Missouri families."

Wood was emphatic about potential implications to the department's authority, "The Conservation Commission must protect the resources entrusted to the department's care. We think the stakes are too large to relinquish future decisions about Lake of the Ozarks and the Osage River to federal utility regulators in Washington, D.C."

Ameren has applied for renewal of its current license to operate the dam. That license expires in February 2006. Should the application be granted, the new license is expected to be valid for a term of 30 years.

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