The band has cleared the field and they are taking their seats in the stadium. The cheer squads have worked the fans up to a frenzy. The team captains and head referee are in the center of the field and the coin is tossed. The visiting team wins and so the head referee announces, “The visiting has won the coin toss and elected to defer. Therefore, we will enforce all the rules of football against the visiting team, but none of the rules against the home team, unless the home team asks us to do so. Now, be good sports and let’s have a good game.”
Some people might be shocked by such an announcement. Some might even suggest that would be unfair. When the visiting team coach realizes that was not a joke and the referees are going to do exactly that, he will be howling. HMMMMMM. Anybody want to place a bet on the outcome of that game?
Well, that is exactly what has happened. The Federal Energy Regulatory Commission (FERC) is in the early stages of the five or so year process of re-licensing the Grand River Dam Authority (GRDA)’s right to operate the Pensacola Dam. That license will last for the next 30 years (although GRDA wants to make it for 50 years). FERC is supposed to apply the best science available, combined with the robustly developed federal law about energy generating facilities in crafting that license. In the very early stage preliminary matters, FERC has mostly been ruling in favor of the visiting team (the citizens, the City of Miami and the Tribes that are upstream of the Lake, but not so far upstream as to not flood). Then comes along Sen. James Inhofe and covertly sneaks in Sec. 6021 to the National Defense Authorization Act (which was drafted for him by the staff of GRDA), with no discussion or advance warning to those who will be damaged by it.
First a little background. When the dam was built there was little federal law on how to do such a thing. GRDA’s engineers determined they needed 17,209 acres of flowage easements above what they considered the lake’s flood elevation at 750 feet. However, the business decision was made to not buy all of those easements, but rather pay for damages if any property was flooded, as this was projected to be cheaper than buying easements. The lake level was intended to be maintained at an elevation of 735 feet, thus giving a lot of flood storage. However, since then, GRDA has gotten FERC to allow them to stair step up that level, while few additional easements have been acquired. They are still about 12,000 acres shy of the original estimate. The two main reasons for the higher elevation: GRDA can generate more electricity and make more money; and ever bigger boats can recreate on the lake. Of course, the primary reason the Dam was originally built was for flood control, but that fact has seemingly been forgotten.
So what exactly does the Infhofe amendment do? First, it is exclusive to the Pensecola Dam. No other dam in the nation will now operate under the same law. Secondly, it provides that FERC cannot make any rule affecting land above 750 feet unless GRDA asks them to do so. The Act states: “The Commission (FERC) shall amend the project boundary only on the request of the project licensee (GRDA).” Finally, the Act states:
“Property Acquisition. If a feasability study or other investigation (what FERC is supposed to do) determines that flood control operations at or associated with Pensacola Dam, including any backwater effect, may result in the inundation of, or damage to, land outside the project boundary to which the Unites States does not hold flowage rights or holds insufficient flowage rights, the project licensee (GRDA) shall not have any obligation to obtain or enhance those flowage rights.
Further, all federally protected tribal trust lands that might be flooded by the operations of the Pensacola Dam, lose all of those protections as far as floods are concerned. This should be a very disturbing precedent for all tribes across the state and nation, but since Sen. Inhofe has such a huge amount of control over millions of federal dollars that they need, just how much do you think they can yell and scream “FOUL!” It was a brilliant political move to slide this into the appropriations bill for the military, because what self-respecting Representative or Senator who wants to get re-elected will vote against THAT, just for the sake of the few thousand of Inhofe’s constituents that are getting cheated out of their homes and businesses.
So, Sen. Inhofe, now that you and your fat-cat, big-boat owner friends won this battle and the NDAA is the law, what happens next? Since GRDA doesn’t have to do anything to fix the problems their dam creates, can you at least get us the federal money necessary to buy out everybody whose lives and dreams have been turned upside down? Many of them have been so damaged that they can’t rebuild even if they have flood insurance, simply because other federal laws and regulations that you have put in place which prohibit repairs if that cost exceeds 50% of the pre-flood value of the property. GRDA wins; citizens lose. Please help those citizens, Senator.
1 Timothy 2:1-2 First of all, then, I ask that supplications, prayers, petitions, and thanksgivings be offered for everyone, for kings and for all in authority, that we may lead a quiet and tranquil life in all devotion and dignity.
Rep. Ben Loring (D-Miami) represents District 7 in the Oklahoma House of Representatives. Contact him at firstname.lastname@example.org or 405-557-7399.