The Pensacola Dam began construction in 1938, offering jobs and electricity to those within the surrounding communities. With the dam, or rather because of it, a man-made lake was formed, Grand Lake O’ the Cherokees. According to city officials of Miami, Okla. with the dam also came increased flooding within the area – flooding that the Grand Lake Authority (GRDA) largely denies responsibility for to this day.
The first license for dam operation was issued to the GRDA in 1939, a year before the Pensacola Dam completed construction. Even in the early stages, there were issues between the GRDA and the Army CORPS on what is known as the “power pool level.” The power pool level – something we’ll discuss in further detail within this article – is the highest point of the dam allowed to hold water at any given time.
The GRDA, at the time, successfully argued that the power pool should stand at 745, fearing that anything lower would reduce the power production by more than 20 percent. A compromise was made in the form of a pre-release to 735 in advance of any flooding.
In a statement dated December 7, 1938, W.R. Holway said, “In advance of threatening floods… pool level can be lowered from 745 to 735 in three and a half to four days, without exceeding the bank – full capacity of the Grand River – and can be lowered to 735 if necessary.” Holway was an engineer for the GRDA and made the statement at a hearing of the Federal Power Commission in Fort Worth, Arkansas.
In Feb. 2023, the City of Miami held a special town meeting, in which several slideshows were presented to the public. What the GRDA is now proposing is that there be no rule curve – which allows the GRDA to raise the power pool level once more – starting in 2026, in their future license.
1982 was the first time a new rule curve was proposed and enacted, and after a decade of enforcement of the new rule curve, the GRDA – through their engineer spokesperson – opined that, “as a result of operating to meet the new rule curve, the frequency and magnitude of flood events increased markedly.”
According to record, between 1940-1982, the dam operated their power pool level at 735 or below approximately a third of the year. During those dates, a span of three months were the only times the levels exceeded 742, May through July. From 1976-1982, pool elevations exceeded 746 feet only twice, but from 1982-1989 that level was exceeded at least once a year.
“This is a point I really want to emphasize,” said Larry Bork. “Flood control was a part of this from the very beginning. The [GRDA] tried to present this as a hybrid dam and it was rejected. It was only approved after the flood control was added.”
Bork, an attorney for Goodell, Stratton, Edmonds and Palmer out of Topeka KS., has spent the last 30 years and over 10,000 hours in litigation with the GRDA and studying the history and effects of the Pensacola Dam.
“When you see a current characterization of what this dam does, you will almost always see that flood control is not mentioned,” continued Bork. “If you look at all the early documents, flood control was mentioned. This was always a flood control project and the GRDA has always known that to be a fact.”
Since 2017, the power pool level has never sat below 742, and it is important to note that 755 is the very top of the flood control pool.
An analysis, conducted by the Army Corps in 1942 indicated that easements in the upper reaches of the lake – the areas surrounding Miami, Okla. – should have been acquired to elevation 769 instead of 760, yet to date, the GRDA has failed to address the issue of easements.
“They have no right to put any water on any property above 760 [feet in elevation],” said Bork.
A 1951 memo from the Army Corps suggested, “In view of these facts, it appears probable that any step toward acquisition of additional lands would be considered as an admission that operation of the reservoir during the 1951 flood had caused damage to the area above those on which easements have been acquired.”
The GRDA has been found liable in several state court decisions – spanning nearly 70 years – for their intrusion. In 2013, the GRDA acknowledged to the Oklahoma Court of Civil Appeals that, “a taking of landowners’ properties for purpose of inverse condemnation had occurred,” yet the GRDA continues the absence of any attempt to acquire the additionally needed easements through purchase or by virtue of other legal means.
“It is the opinion of this office that it would be much more economical to pay damages, when and if caused by the smaller floods, than to acquire the additional flowage easements.” ~ 1957 Southwestern Power Administration memo
“If the federal government and GRDA had done what it knew it should have, we would not be in this position,” argued Bork.
For years, the GRDA has denied any adverse effects of the power pool level on citizens in the surrounding communities, and communities like Miami and the citizens that reside there, never openly said anything to the contrary. That all changed in the 2000s, when the City of Miami and a large group of plaintiffs filed a class action lawsuit against the GRDA. That lawsuit is currently pending a final decision.
Separately, the City of Miami filed a complaint with the Federal Energy Regulatory Commission (FERC) challenging the GRDA’s failure to obtain adequate “flowage rights” by either purchasing property or acquiring an easement from the City to defray the cost of future flooding. That challenge made its way to the 2nd highest court in America, the DC Circuit Court of Appeals, which decided in the City’s favor.
There’s something else that only a handful of people consider when looking at the issue of flooding around Miami and surrounding communities; Miami is right next to one of the most toxic places on Earth, Picher, Okla…
Picher, Okla. closed in 2008 and is virtually a ghost town nowadays, and even though the EPA – through the efforts of the Quapaw tribe – is focused on cleaning the area up, much of the land and water is still very toxic.
Tar Creek flows right through Picher, Okla. and ends at the outskirts of Miami, but when the flooding occurs, the water and contaminated source material from Picher and Tar Creek is carried throughout the area. The lands that have been cleaned are in danger of being re-contaminated, the lands that were never contaminated are in danger of being contaminated.
“This isn’t something that could happen,” said Cori Stotts, long time Miami Okla. resident. “It is happening now.”
In 2018, the City of Miami proposed that the GRDA be required to do a study on the transportation of contaminated material due to the dam operations – to date, that study has never been done.
Walker Stanovsky and Shannon O’Neil, attorneys out of the law offices of Davis Wright Tremaine, have been representing the City of Miami before FERC in hopes of requiring much needed accountability from the GRDA.
“Part of why we’re in this current situation is that we have a dam where the operations are not quite syncing up with what we would have anticipated would be the best fit for this community,” said O’Neil.
The Federal Energy Regulatory Commission has the authority to impose fines for noncompliance, and potentially, revoke the GRDA license if necessary.
There are currently ten Native American tribes located around Miami, Okla. that are affected by operations of the Pensacola Dam, but the decisions of the GRDA shape the entire region.
Community members are encouraged to share their story with FERC by submitting comments regarding the Pensacola project relicensing. Individuals can submit those comments electronically on the FERC website (https://ferconline.ferc.gov/FERCOnline.aspx) or by mail to the following address:
Attention:
Kimberly D. Bose, Secretary
Debbie-Anne Reese, Deputy Secretary
Federal Energy Regulatory Commission
888 First Street, N.E.
Washington, DC 20426
[OS1]Please note that this language is quoted from the court’s decision in Perry v. GRDA (344 P.3d 1 (Okla. Civ. App. 2013)), not a direct quote from GRDA counsel.