GRDA's current license expires March 31, 2022, and the lengthy five–year relicense process request for the operation of the Pensacola Project 1494-438 is underway.
MIAMI – The first round of official public commentary to the Federal Energy Regulatory Commission (FERC) for Grand River Dam Authority's (GRDA) relicensing proposal for the Pensacola Hydroelectric Project No. 1494 for the operation of Grand Lake ended on March 13.
GRDA’s current license expires March 31, 2022, and the lengthy five–year relicense process request for the operation of the Pensacola Project 1494-438 is underway.
Commentary is included in the scoping process of the relicensing in preparation of the Environmental Impact Statement (EIS) and Assessment part of the regulatory requirements of the request.
Numerous residents filed commentary during the scoping meetings in February and through electronic filing and other methods.
The U.S. Environmental Protection Agency (EPA) has identified several issues in a letter submitted March 13 by Special Projects Chief Robert Houston and made recommendations pursuant to the National Environmental Policy Act (NEPA), Council on Environmental Quality and the Clean Air Act.
The EPA makes recommendations for the EIS to include information regarding water supply and water quality, dredge and fill impacts, a listing of Clean Water Act impaired waters in the project area, if any, biological resources, habitat and wildlife, air quality, impacts of hazardous materials, hazardous waste and solid waste, effects on environmental justice communities, such as low-income, minority (including Native Americans), coordination with tribal governments, and address the existence of cultural and historic resources.
City of Miami
The City of Miami submitted a 21-page commentary through counsel, attorneys Carlos Gutierrez and Craig Gannett with Davis Wright Tremaine LLP of New York and Seattle, Washington.
“The City supports the relicensing of the Project, but only with changes to existing terms and conditions,” Gutierrez and Gannett wrote, “The residents of the City have all too often suffered the negative effects of the Project, which have only exacerbated in recent years. It is simply not in the public interest for the FERC to issue a new license that perpetuates the status quo.”
The City’s commentary asks FERC to take into account the licensed project’s purpose for flood control and purports federal lands are within the project boundary. The City calls for evaluation of existing environmental measures, consideration of alternative studies, analysis of the cumulative effects of the project on water, geology, soil, socioeconomic cultural and aesthetic resources and asks FERC to consider how the project will affect a local resource plan formally adopted by the City of Miami.
The City submitted a request for studies to include a Flood Routing Study to include operations on Grand Lake and its tributaries – the Neosho, Spring and Elk Rivers and Tar Creek and the backwater flooding effects.
“A comprehensive flood routing study must be conducted in order to adequately address the effects of flooding caused by the Project. Flooding is the ‘elephant in the room’ of this relicensing process, and yet GRDA completely rejects the need to study the project-caused flooding that has devastated upstream landowners for decades,” Gutierrez and Gannett wrote.
The City is asking FERC for a Contaminated Sediment Transport Study for analysis of contaminated soils from the Tar Creek Superfund Site north of Miami carried by tributaries to Grand Lake and an analysis of increased backwater flooding that leaves deposits in the soil posing a serious risk to humans, wildlife, and crops.
“Investigating the impact of the Project on human health and environmental resources through increased flooding and sedimentation of contaminated material in Grand Lake and beyond the existing project boundary, including the vicinity of the City, is necessary to fulfill the Commission’s responsibilities under NEPA,” Gutierrez and Gannett wrote.
The City is also calling for a Socioeconomic and Infrastructure Improvement Study claiming the flooding caused by the project has negative impacts on the City’s economy, infrastructure, and quality of life requiring further examination.
That study would include the existing trend of home values, tax base, tourism, social impact, and business and jobs in the project affected areas, and the net economic impact on the state and local economy for infrastructure construction and mitigation to combat flooding. A Cultural Resources Assessment Study is requested by the City as well to address the critical need for assessment of historic and tribal properties.
Counsel claims in its commentary on behalf of the City, “FERC has repeatedly permitted GRDA to raise lake levels, which has increased flooding, but without requiring GRDA to acquire the necessary flowage easements or other property rights. Eventually, in the mid-1990s, property owners had no choice but to sue GRDA in state court for the property by the increased flooding. The lawsuits succeeded because the courts concluded that GRDA’s operations violated state law.”
The filing continues, “The City and its residents should not be left to pursue decades of litigation because of license conditions that allow repeated, unmitigated, and uncompensated flooding. In this relicensing, the City urges the Commission to once and for all resolve this longstanding issue by requiring GRDA to operate pursuant to a revised rule curve, to acquire flowage easements, and to implement other mitigation measures such as infrastructure improvements.”
City of Grove
The City of Grove filed commentary through Mayor Ed Trumbull’s two-page letter asking for FERC to address four points of interest during the relicensing process; the rule curve, water quality and environmental health of Grand Lake, future sustainable yield, and local and regional impact.
“This ongoing issue needs to be resolved taking into consideration the interest of all parties,” Trumbull wrote, “Water levels need to be maintained at a level that is able to support the long-term economic vitality of the Grand Lake region.”
With Grand Lake as the water source of the City of Grove, and rural residents and water districts, Trumbull asks FERC to ensure the water quality in the lake and watershed be sustained and improved and be available to support growth of the increasing water demand.
The importance of the economic impact of the lake’s operation for the region was outlined in the City of Grove's commentary.
“The Grand Lake region continues to grow and prosper. The primary economic engine for growth is the lake and the tourism and recreational opportunities that it provides to the area. Grand Lake is also a destination location for top-rated Bass fishing tournaments and unique water sports events,” Trumbull wrote.
GRDA and Grove have a mutually beneficial relationship, according to Trumbull.
“The City of Grove greatly appreciates the efforts of the Grand Lake Dam Authority in how they manage their assets and the operation and maintenance of the lake. In addition, GRDA annually supports recreational and tourism-related events and projects to the Grand Lake community,” Trumbull wrote.
U.S. Department of the Interior, Bureau of Indian Affairs Superintendent Eddie Streater filed commentary asking if easements between the elevations of 755 and 760 are transferred to GRDA, then FERC and GRDA should not abdicate responsibility for operation at these elevations by claiming they are within the U.S. Army Corps of Engineer’s jurisdiction.
He also asked for a study to ascertain if operation below 745 feet is sufficient for power generation purposes and whether GRDA has been generating power when the surface elevation is above the project boundary.
Streater also asks for appropriate tribal consultation regarding fish and aquatic, terrestrial resources and the effects of the project operations on adjacent tribal lands, and called for scrutiny of GRDA’s proposed studies by FERC to ensure comprehensive study has been done of the project’s effects on BIA and Indian tribes.
“Specific socioeconomic resources to be considered should include casino gaming and access to Indian trust lands that could be hampered by flooding events caused or contributed to operation of the Project,” Streater wrote.
Streater calls for a cultural resource management plan, to take into account potential effects on tribal cultural resources, as well as historic and archeological resources.
“The BIA questions whether the proposed operations and hydraulic models are sufficient to provide necessary information to evaluate any cumulative effect of project operations on tribal lands,” Streater wrote.
The Wyandotte Nation, Seneca-Cayuga Nation, Eastern Shawnee and Ottawa Tribes of Oklahoma all joined a 32-page commentary made by the Miami Tribe of Oklahoma.
The Miami Tribe’s comments by Chief Douglas Lankford contends FERC has stated no federal lands have been identified within the Project boundary contrary to the BIA’s filed maps showing several parcels of federal lands within the Project Boundary and he wrote, “Despite tribes’ repeated testimony and comments that federal lands are within the Project Boundary, the Tribe is not aware of any efforts undertaken by FERC and GRDA to verify the existence of federal lands vis-a-vis the Project.”
The Tribes are seeking immediate consultation with the U.S. Department of the Interior and FERC for determining how to rectify the Project’s historical and ongoing inundation of federal lands. The tribes call for a Flood Routing Study, a Cultural Resources Assessment Study, Contaminated Sediment Transport Study, Infrastructure Impacts Study, Economic and Socioeconomic Impact Analysis.
“Federal law is clear; FERC – not the Corps- is legally obligated to take into account all flood impacts caused by the Pensacola Project for the purposes of this relicensing proceeding,” Lankford wrote.
The Cherokee Nation filed additional commentary asking for the same studies and consultation in regards to the Nations’ interests involved by the project.
FERC requested in a March 15 letter Streater provide additional information regarding trust land maps filed to support BIA and tribal statements that tribal lands are located within the project’s boundaries.
The U.S. Fish and Wildlife Service Field Supervisor Jonna Polk filed comments and a study request on the department’s behalf asking for an Inundation Study on refuge lands, caves, existing and potential mitigation lands, riverine habitat in all tributaries for the Neosho smallmouth, paddlefish, Neosho madtom, federally-listed mussel habitat, roost and maternity trees for federally-listed bats and other wildlife in the project area.
The Oklahoma Archeological Survey’s State Archaeologist Kary Stackelbeck wrote commentary asking FERC to expand the scope of the initial cultural resource study proposed and asking to be afforded comment on the findings as afforded by Section 106.
“One of the principle points of concern (but not the only) regarding impacts to archaeological resources derives from the depletion of soil, which acts as a matrix within which archaeological deposits are found,” Stackelbeck wrote.
FERC Staff Comments
In a March 13 letter to GRDA, after review of the Pre-Application Document (PAD) and staff participation in public scoping meetings, FERC’s Division of Hydropower Licensing Chief Stephen Bowler asked for additional information and clarification on material presented.
Bowler asked for clarification of a discrepancy in Grand Lake’s surface area and elevation, the PAD indicates 45,200 acres at elevation 745 at the dam, and the license states the surface area is 46,500 acres at 745 feet.
FERC asked for surface area-lake elevation curve for the project that shows the reservoir surface area at elevations 745, 750 and 755 feet. FERC also asks for an entrainment study conducted in 1990 and a description of factors that may have changed regarding the study’s assumptions on fish entrainment as well as operational measures taken.
An update of the Shoreline Management Plan due in 2019 is included in FERC’s request to GRDA, as well as Works Progress Administration’s archaeological surveys conducted between 1937 and 1940 currently unavailable or a plan to review the records.
FERC goes on to make additional study requests to address seven study criteria.
“After reviewing the information in the PAD, and recognizing GRDA’s intent to develop a hydraulic and operations model for the project, we have identified gaps between the existing information and the information needed to assess project effects on flooding requested,” Bowler wrote.
FERC asks that the Flooding and Sedimentation Study have four objectives; to identify the affected area and scope of potential project effects, evaluate the effects of current project operations on flooding, evaluate whether there are alternative project operations that could reduce flooding and assess the need for, and feasibility of, implementing flood mitigation measures.
Bowler lays out the relevant resource management goals and public interest considerations saying under the Federal Power Act requires the Commission to give equal consideration to all uses of the waterway on which the project is located, and what conditions should be placed on any license that may be used.
“In making its license decision, the Commission must equally consider the environmental, recreational, fish and wildlife, and other non-developmental values of the project, as well as power and developmental values,” Bowler wrote.
FERC specifies additional study information needed including incorporating high-water recordings from past flood events and site-specific calibration.
“Existing topographic information could be used for the model geometry; however, topography and/or bathymetry will likely need to be resurveyed in stream channel reaches where reservoir backwater an sedimentation have altered bed elevations relative to historical conditions,” he wrote.
In FERC’s filing Bowler writes, information gathered through this study would allow stakeholders to develop an understanding of the interactions between project operation and flooding, the specific factors or elements that can influence flooding and associated effects on other resources.
“This information would also be important in determining whether the current project boundary is appropriate,” he wrote.
Proposed study methodology is laid out in four outlined stages in detail incorporating much of the criteria requested in commentary at an expected cost of $650,000.
Once all comments are reviewed GRDA will submit a revised proposed study plan to FERC and an opportunity for stakeholder comment will be offered again.
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.