In the City of Miami's motion to intervene filing, the city claims GRDA's most recent added proposal would “substantially prejudice the careful balancing of competing public interests” FERC undertook in the current license and that FERC will be taking on in the relicensing under the Federal Power Act.

MIAMI – The City of Miami has filed a formal motion to intervene in the next phase in the procedures of the Grand River Dam Authority’s (GRDA) May 24 relicense request for the operation of the Pensacola Hydroelectric Project to the Federal Energy Regulatory Commission (FERC).

The response filing was prepared by the City of Miami's legal counsel in the matter, attorneys Barbara Jost and Craig Gannett with the law firm of Davis Wright Tremaine LLP of Washington, D.C., and filed on July 13.

This motion includes calling to question GRDA's timing of filing a proposal to incorporate a brand new Coal Creek Wildlife Management Area in the license request in exchange for eliminating Article 411 for wildlife mitigation and a Fish and Waterfowl Habitat Management Plan previously approved by FERC in 2003. The City claims this proposal would be a major change to the current license.

“GRDA is here proposing to terminate that effort and instead go in a very different direction,” Jost and Gannett wrote in the filing, “...The purpose of this shift is obvious: to clear the way for further raising the reservoir levels under the rule curve, thereby resulting in more power generation for GRDA in exchange for more flooding for the City and its citizens.”

GRDA's project license is due to expire March 31, 2022, and the relicensing process is well underway. In the latest phase of the process, comments on GRDA’s proposed studies are due by July 26. A study plan determination is set to be issued by FERC on Sept. 24.

In the City of Miami's motion to intervene filing, the city claims GRDA’s most recent added proposal would “substantially prejudice the careful balancing of competing public interests” FERC undertook in the current license and that FERC will be taking on in the relicensing under the Federal Power Act.

The city also claims GRDA deviates from its compliance obligations under Article 411.

The city claims approving such a change also violates a core principle of the National Environmental Policy Act (NEPA).

The City of Miami states in the legal filing, GRDA has failed to meet its compliance obligations under Article 411 of the license agreement and therefore this application should be rejected and Article 404 should be restored. Article 404 obligated GRDA to annually seed 1,000 acres of mudflats on Grand Lake's shoreline to compensate for negative effects on fish and wildlife.

In the filing, the City of Miami also alleges GRDA subverted the authority of the Technical Committee, and used Fish & Wildlife funds for unapproved purposes.

Because of these occurrences, the City of Miami claims, “the record demonstrates the folly of entrusting GRDA to implement its environmental mitigation obligations.”

“GRDA’s track record demonstrates a failure to diligently implement Article 411. This would be a mistake,” Jost and Gannett wrote in the filing.

The filing asserts FERC cannot analyze and therefore must reject the application because GRDA has failed to include all reasonably foreseeable and related license changes. Jost and Gannett argue that GRDA has failed to present all of its related proposals in this application consistent with NEPA requirements for assessing environmental impacts.

The city's filing claims good cause exists for FERC to reopen consideration of the 2017 order amending Article 401 to raise the rule curve.

In their final statement in the Motion to Intervene Jost and Gannett plead to FERC, “As described in prior Commission filings, the city has experienced many substantial floods over the past 25 years. To better understand these floods and their nexus to the Pensacola Project, the city commissioned flooding studies from hydrologist at Tetra Tech. These studies demonstrated that the Pensacola Project, as operated, exacerbates natural flooding in the city area and causes unauthorized flooding on thousands of acres of land. This unauthorized flooding puts the health and safety of people and property in the city and surrounding areas at risk to this day. As the commission has made clear, concerns about such unauthorized flooding and how to mitigate for such problems is a matter to be addressed in the project's upcoming relicensing proceeding. The city is a public entity entrusted with the duty of protecting its citizens who can be adversely affected by the outcome of this proceeding. No other party can represent its interests nor offer the same insight to assist the commission’s decision making.”

Melinda Stotts is the associate editor of the Miami News-Record. She can be emailed at mstotts@miaminewsrecord.com or followed on Twitter @MelindaStotts1.