MIAMI – Asking for consideration, local push back continues against the Grand River Dam Authority's (GRDA) application for a temporary variance request made to the Federal Energy Regulatory Commission (FERC) for operation of the Pensacola Project No. 1494.

Formal filings of protest and motions to intervene filed with FERC from the City of Miami and Miami Tribe of Oklahoma argue against the allowance of the temporary change GRDA is asking for of the Rule Curve of the Pensacola Project No. 1494 license for the period of Aug. 15 through Oct. 31 of this year in standard pool elevations of Grand Lake currently allowed by the license.

"Our filing mirrors those submitted in 2015 and 2016. While we are not against GRDA’s goals of keeping the lake levels higher during the Labor Day period, our concerns are that with current dam operations, a higher lake level can lead to additional flooding in Miami, similar to that experienced last May, ' Miami City Manager Dean Kruithof said.

GRDA also applied last year for a permanent license amendment which is still pending with FERC.

Once again the City of Miami, upstream of the project, opposes the variance due to flood hazard areas of the city prone to periodic inundation resulting in loss of property and health safety concerns such as loss of life, disruption of commerce, and governmental services and extraordinary public expenditures for flood protection and relief.

The filing prepared by Attorneys Carols E. Gutierrez and Craig Gannett with Davis Wright Tremaine LLP, representing the City of Miami, states, “As described in prior filings, the City has experienced dozens of substantial flood events over the past 20 years. In an effort to gain a better understanding of these floods and their nexus to the Project, the City commissioned several flooding studies from renowned hydrologists at Tetra Tech. Tetra Tech found that the Project exacerbates natural flooding in the City area and causes unauthorized flooding on thousands of acres of land. The Project's unauthorized flooding puts the health and safety of people and property in the City and surrounding area at risk.”

The motion and protest claim GRDA's request to modify the Rule Curve is shown by Tetra Tech's study to indicate conclusively the Project causes harm to the City of Miami with increased elevation and duration of floods.

“Flood, worsened by the Project's operations, have caused unauthorized flooding on approximately 12,900 acres of land...The Rule Curve should remain as-is until the Project's operations and effects can be thoroughly studied and analyzed in the upcoming relicensing proceeding,” the City of Miami's filing states.

The City of Miami cites the variance request as superfluous seeking the same Rule Curve changes pending before FERC in the proposed amendment proceeding.

GRDA filed the variance request again this year “out of an abundance of caution,” in the event FERC cannot rule on the Proposed Amendment by Aug. 15 due to the lack of quorum.

The City's attorneys argue in the filing that GRDA's reasons for the Variance Request or the Proposed Amendment for licensure cannot stand up to scrutiny and therefore should be denied.

The Miami Tribe of Oklahoma filing claims the Project has been flooding tribally-owned and federal trust lands for decades, and GRDA has failed to secure easements or other land rights.

The Miami Tribe took the lead in Inter Tribal Council efforts, including the Eastern Shawnee Tribe of Oklahoma, the Peoria Tribe, the Ottawa Tribe of Oklahoma, the Wyandotte Nation of Oklahoma and the Seneca Cayuga Tribe, to gain participation and become a party to the FERC proceedings regarding GRDA's operations of the Pensacola Dam and Grand Lake to ensure a more complete record.

The Tribe's efforts also seek protection of tribal members' welfare, tribal lands, cultural, historic and natural resources, economic enterprises, tribal educational facilities, elder facilities, governmental facilities, a tribal fish hatchery, and tribal members access to tribal services.

The Miami Tribe asks that FERC defer GRDA's proposed changes to the Rule Curve until the relicensing proceeding and until GRDA undertakes comprehensive flood routing studies and impact analysis.

“Since it is clear that Project operations under alternatives to the current Rule Curve are the cause of unauthorized flooding, it would be an abuse of discretion to ignore the ongoing damage and risks posed by current operations in evaluating whether the incremental flooding due to the Variance should be permitted,” Attorney Joseph F. Halloran of The Jacobson Law Group of Saint Paul, Minnesota argues in the Miami Tribe's filing.

Halloran cites requirements under the Federal Power Act which is FERC's duty to investigate in regards to GRDA's use and occupancy of Tribal trust lands and any license amendment necessary authorizing any such occupancy.

FERC must address whether it is in the public interest to authorize GRDA's occupancy of federal trust lands by the Project, the development of mandatory Bureau of Indian Affairs conditions necessary to protect such lands, and the annual charge GRDA would be required to pay the Miami Tribe and other impacted tribes for the use of such lands, according to Halloran.

Halloran argues GRDA's proposed Rule Curve changes require consultation and review to determine potential to cause adverse effects on tribal cultural property on or eligible to be on the National Register of Historic Places.

In August of 2016, ITC Tribes met with FERC staff and identified these concerns and requested consultation with FERC and GRDA.

“No consultation of any kind has happened following that meeting,” Halloran wrote in the filing, “Nevertheless, and undeterred, on January 18, 2017, FERC Staff boldly declared Section 106 compliance in advance of the issuance of the FERC EA.”

On Feb. 17 the Miami Tribe lodged an 18-page non-concurrence with the FERC Staff Section 106 decision, which went unanswered according to Halloran's filing and subsequently issued in the final FERC EA a determination of “No Adverse effect.”

The Miami Tribe also asks for consultation with the Advisory Council on Historic Preservation and for GRDA to prepare a Historic Properties Management Plan. For the Project regarding tribal interests.

The Miami Tribe is asking FERC to engage in meaningful consultation with the Tribe and fulfill its fiduciary trust obligations to the Tribe before approving any modifications to the Rule Curve.

“For far too long the GRDA has been allowed to use and adversely impact tribal lands and other resources without authorization,” the Miami Tribe's filing claims. “The federal trust responsibility and applicable federal law require that the Commission thoroughly and meaningfully investigate the potential adverse impacts on the Tribe and the other affected tribes, their lands and their resources associated with the GRDA's operation of the Project, as well as GRDA's proposed modification of the Rule Curve which would only exacerbate those adverse impacts.”

The Miami Tribe's filing states it would be highly improper for FERC to approve any Rule Curve changes to allow GRDA to increase unauthorized flooding affecting Tribal lands, the City of Miami, and the 493 plaintiff's protest and comment issues until these concerns are addressed.

“For the reasons set forth above, the Tribe has specific and important interests that may be directly affected by this proceeding, and other parties do not adequately represent those interests. The Tribe respectfully requests that the Commission grant its motion for leave to intervene in the above-captioned preceding and to allow it to participate as party herein pursuant to the Commission's Rules of Practice and Procedure,” Halloran wrote. “Further, the Tribe requests that the Commission deny the Variance.”

A letter filed July 20 with FERC from the Advisory Council on Historic Preservation's Assistant Director Charlene Dwin Vaughn requests FERC provide a summary of its compliance with Section 106 for the currently proposed amendment to the existing license.The ACHP is also asking FERC for clarification on the basis for its determination of “ No Adverse Effect” for the current proposed license amendment and how the tribe was consulted.

The City of Miami is seeking FERC's continued cooperation to avoid flooding should GRDA's temporary variance be approved.

“In the past, FERC has worked to address our concerns by requiring weekly conferences with GRDA concerning lake levels and weather conditions during the variance period, if they approve this variance we hope FERC continues this requirement. GRDA has been very responsive during the variance period, and they have carried that forward to communications at other times when heavy rain has hit the state,” Kruithof said. “From a long range perspective, our sincere hope is FERC will assess dam operations recognizing current lake conditions including the decreased capacity of the lake due to siltation.

"Solutions including pre releases during potential flooding conditions and capital improvements in Miami, such as our efforts to elevate the approach to State Highway 125, can help us to work with GRDA and the US Army Corps of Engineers to prevent major floods and limit the effects of minor floods on our community.”