MIAMI- The Miami Flood Mitigation Advisory Board (MFAB) met to discuss the Federal Energy Regulatory Commission's (FERC) approval of Grand River Dam Authority's (GRDA) request for temporary variance and what to do next.
GRDA asked for rule curve variance for the operation of Pensacola Dam for hydroelectric power generation, the benefits of improved boating conditions on Grand Lake, fewer boat groundings during the late summer, an extended recreation season resulting in more economic activity in local communities, and improved D.O. (Dissolved Oxygen) conditions downstream of the project should a drought occur.
On Aug. 12, FERC issued the order approving the temporary variance from GRDA's application and request to permanently amend the reservoir elevation rule cure request filed on May 6.
GRDA requested in their filing that the Commission grant a temporary variance for the summer/fall of 2016 while continuing to process the permanent amendment application.
The City of Miami and Inter-Tribal Council of Northeastern Oklahoma, and the U.S. Department of the Interior, as well as residents of Ottawa County, intervened and argued the changes made now and historically in Grand Lake’s level for GRDA's power generation have caused more frequent and more substantial upstream flooding and backwater flooding.
These operational allowances have caused harm to property, homes, wildlife, economic and development difficulties, threaten or have harmed historical and cultural sites, as well as posing a hardship and life-threatening danger to residents, according to these stakeholders.
“I want you to elaborate on the impact of FERC's decision on future potential temporary or permanent variance requests, the potential timing of those, and actions that you believe it's critical to see and the coalition of tribes take in advance of that potential requests and response to that potential request,” Miami Mayor Rudy Schultz said to those assembled.
The consensus of the attorneys representing the City of Miami and ITC is to move on to prepare a legal defense for the permanent license amendment GRDA has notified FERC they will be filing as part of their licensing renewal.
A rehearing request on the temporary variance would need to be filed by Sept. 12 to challenge FERC's order.
“I'm not inclined to recommend seeking a rehearing on the variance, even though we have grounds to challenge it, but I think in the context we find ourselves, it's best to focus on the next phase, the permanent licensing,” city special counsel Jim Vasile of Washington, D.C. said.
GRDA must file a notice of intent and the permanent amendment with FERC between Oct. 1 of this year and March 31, 2017. Once GRDA files, a timeframe begins of a six- to nine-month licensing process.
The MFAB involved key stakeholders representatives Vasile, ITC attorney Joe Halloran, Larry Bork's representative Peggy Zigler, Tetra Tech expert Dr. Bob Musseter and Schultz as well as board members Dustin Olds, Jack Dalrymple, Gary Crow and other experts.
MFAB members Dr. Mark Osborn and Dr. Jeff Hale and City Manager Dean Kruithof were absent from the meeting.
The team of attorneys are now working to tackle any evidentiary weaknesses and to supplement the record to support claims made by the city and ITC and residents of Ottawa County.
Schultz asked if the nine member tribes of ITC had been able to provide more detailed mapping of the location of effected tribal properties and sites as FERC requested at the Aug. 3 consultation meeting.
The meeting with FERC involved ITC and the U. S. Department of the Interior representatives.
Schultz also asked if the information was reviewed before FERC made their decision on the temporary rule curve variance.
FERC representatives at that meeting indicated the decision was expected to be made by commissioners on Aug. 15 or 16, but the decision was in fact made earlier than the deadline.
“We were on the verge of filing a supplement, literally the same day, when the variance request decision was issued,” Halloran said.
Halloran said FERC has not yet seen these documents, but the detailed mapping will be submitted for each tribal jurisdictional area as part of the permanent amendment request procedures and response.
Vasile indicated the process of re-licensure could take months and GRDA may or may not include the variance request as part of the permanent amendment of license and simply ask again for the temporary variance each year.
Zigler impressed upon the board that there are other concerns with Grand Lake's problems being addressed regarding water quality by the Oklahoma Water Resource Board and Fish and Wildlife concerning contaminate levels of heavy metals and fecal matter from poultry producing facilities.
She told the board she believes GRDA is buying time with the flooding issues to draw attention from these matters.
Also flooding, backwater flooding and lake level studies are needed to address the effects on these important aspects to water quality, according to Zigler.
“They don't mind applying for the variance every year, but keep in mind, they will ask for the permanent amendment with the license,” Zigler said.
The City of Miami and ITC are asking the decisions by FERC be based on state of the art scientific studies and not information from what is described as the “master thesis” of a graduate student provided by GRDA.
Halloran also argues the tribes’ interests have never been included as provided in by federal historical, cultural preservation protection acts and as called for by federal law.
Schultz said he feared GRDA might push for the amendment to be ruled on expediently to take advantage of current political support and influence before elections possibly change things.
Tribal leaders also expressed concern over political influence on the issue at the consultation meeting Aug. 3.
Along these lines, U.S. Sen. James Inhofe of Oklahoma reportedly attempted communications on July 26 through telephone calls to three FERC commissioners; Colette D. Honorable, Tony Clark, and FERC Chairman Norman C. Bay, according to FERC documents.
“On July 26, 2016 I received a call from Senator Inhofe regarding his support of Grand River Dam Authority's request to modify the rule curve governing Grand Lake waters. I noted that we could not speak about matters pending before the Commission and thanked the Senator for his call,” Honorable wrote in a memorandum to Secretary Kimberly Bose dated Aug. 10, two days before the decision was made.
Subsequently, Clark and Bay filed similar memorandums on Aug. 11, one day before FERC's approval of GRDA's request.
Inhofe praised FERC in an Aug. 15 press release for approving the GRDA's request for the temporary variance.
The press release was sent to the Miami News-Record after a request for comment was made regarding the Senator's attempted communication with FERC Commissioners by phone.
“I am pleased with the quick response by the FERC to approve GRDA’s request for an annual variance from the rule curve in GRDA's license to operate the Pensacola Dam," Inhofe said. "The present rule curve is a relic, which must be readdressed in the relicensing process as it does not reflect current conditions and environmental mitigation. People’s livelihoods are affected by the drawdown, impacting public safety as well as restricting commerce during the summer season. I appreciate GRDA, FERC, the U.S. Fish and Wildlife Service and others that continue to make the right decision each year to preserve Grand Lake's important and enjoyable recreational value.”
On Aug. 1, Inhofe wrote a letter to FERC bringing attention to the importance of maintaining lake levels at Grand Lake to support recreational safety and commerce.
In Inhofe's letter he states in part, “Thank you for taking time recently to speak with me personally about Grand Lake. As you know, for the better part of my career in the United State Senate I have been working to maintain higher lake levels on Grand throughout the summer in order to make the lake a better place for recreation and commerce.”
Asked for specific comment on the attempted phone conversations with FERC commissioners, Inhofe spokesperson Donelle Harder said, “Senator Inhofe, in his capacity as a U.S. Senator, reached out to the FERC Commissioners and expressed his viewpoints on behalf of his constituents relating to a pending issue for Grand Lake. He knew that all forms of correspondence with the commissioners would be made available for public record, as regulations require, and the public records shows that the commissioners’ response to Senator Inhofe was completely appropriate.”
The concern of the MFAB, ITC and City coalition is that GRDA has focused on incremental flooding to avoid dealing with the issue that proper studies have never been completed on Ottawa County including Spring River and the Neosho River to address the historical upstream impact of the reservoir and the Pensacola Project.
“We're getting into the issue here of the incremental effects of this rule curve versus just the big picture question of the flooding impacts of the reservoir,” Vasile said. “That’s the bigger picture question.”
Halloran said no changes should be made by FERC and GRDA until it is determined what the current and existing operations are doing and how they are damaging property or causing increases danger to human life.
“We refuse to fight a red herring and that is the incremental impact of incremental changes, because the baseline is – you don't know what you're doing right now, except for, you've known since 1940 that you don't have enough land, but you don't know the impact because you haven’t studied it,” he said. “You haven't talked to the tribes about the impact. You haven't talked to the tribes about the cultural resources impact, you don't even have a baseline cultural resource assessment before the flood pool and power pool was built on. So, they don't know what they're doing right now, so any further federal action is improper.”
Halloran also stressed the importance of the significance Federal Emergency Management Agency (FEMA) change in flood mapping of Ottawa County.
“The tribe knows the significance of that flood mapping, the city knows the impact. For tribes it effects their qualifications for HUD housing, it will effect their qualifications for financing even on fee lands, for economic development, it effects a lot of things and I think it is a direct result,” Halloran said. “I cannot imagine there would be a 10 foot adjustment in the FEMA maps since the last adjustment years ago except for operations of the dam.”
The summation of the coalition was to work toward marshaling evidence toward efforts to provide FERC with information, data and legal arguments to look at the upstream backwater flooding impacts on Ottawa County and its residents and demand necessary studies are done and proper easements obtained.
Vasile said they would be asking simultaneously of FERC for the U.S. Army Corps of Engineers and GRDA to be required to seek alternative operating practices at the dam and for flood control of the reservoir.
“The purpose of this meeting was to make sure we’re not sitting on our hands,” Schultz said.
Melinda Stotts is the associate editor of the Miami News-Record. She can be emailed at firstname.lastname@example.org. or followed on Twitter @MelindaStotts1