GLUE Membership Report – April 24, 2008

Since our February 23^rd meeting at Arrowhead, things have come to all but a standstill regarding the shoreline management plan with two exceptions. The authority has posted new maps on their web site reflecting the zones by color and they have announced one new zone. The new zone, which is mostly located in the northern most portions of Grand Lake, will be dedicated to the management of wildlife. It’s my belief this new zone came about from negotiations between the authority and state and federal wildlife representatives in an effort to gain their support for the plan.

As it stands right now, the shoreline management plan, after two postponements, will be presented to the GRDA board of Directors at the regularly scheduled June meeting the second Wednesday of the month. We believe the habitable structure issue will also be addressed at that same board meting. I anticipate the smp will be approved and that habitable structure issue could go either way. Since the definition of a habitable structure included any enclosed boat dock, many of our members could be affected by the outcome.

My plan calls for speaking at the June meeting in support of both the SMP and habitable structures as long as mandated plumbing codes are met and the handling of both waste and gray water are in compliance. To me, this is a very significant issue when you stop and think about how this potential action could relate to many boats on our lake. Both cruisers and house boats could very easily be considered habitable structures since they have heads and generate gray water from showers, washing dishes and more. The way the feds work this is a potential disaster in the making. To me, habitable structures merely represent a more affordable approach to recreating on Grand Lake.

At least one of our members has expressed a concern about this issue because second story installations in Marinas could restrict the view of nearby property owners. I certainly understand that concern, but there are over 800 structures on Grand Lake which will be affected by this decision….and to my knowledge only two currently reside in a second story marina location.

Water Quality Issues

At our February meeting, a common concern for many was Grand Lake’s water quality. I told those in attendance I could see our focus including work in this area. At our meeting, GRDA Eco-Systems guru Dr. Darrel Townsend revealed some of the plans for the new eco-systems building in Langley. The potential partnership with OU and perhaps OSU for the purpose of monitoring water quality was, in my estimation huge. Townsend also talked about a lake-wide environmental assessment study just completed by OU. The results were probably predictable by many as the conclusion pointed to inflows to the lake as the primary offender. Those inflows are adversely affected by chicken litter, fertilizer, ground water runoff and discharges from sewer systems and industrial applications plus many more.

At the invitation of former Senator Rick Littlefield, I visited the Simmons Foods plant in Southwest City, Missouri, this past Tuesday. CEO Mark Simmons brought in a few people for lunch and to share is company’s performance on discharge parameters dictated by the strictest permit in the state of Missouri. Needless to say, their performance over the past few years has been excellent and recognized through several industry-based associations. They have basically met or exceeded all of their target numbers, which is good news for Grand Lake.

The last time I met eye-to-eye with Simmons was after a major spill had occurred in the early to mid nineties and I had written a critical editorial during my Chronicle days. The circumstances were certainly more pleasant this time around. But the issue of most importance remains the handling of chicken waste in the watershed and I’m hopeful this will lead to a dialog on the subject. I plan to have a follow up meeting to pursue this subject for what the possibilities are. I’ll keep you posted.

Cherokee Yacht Club Protest Letter

I’m sure many of you have read the accounts in the Tulsa World, written by Randy Krehbiel, regarding a lease between CYC and the GRDA for encroachment. The encroachment was discovered when the property was surveyed in conjunction with a possible sale of the facility. To complicate the issue further, CYC is owned by Terry Frost, who also sits on the GRDA board and is currently the board’s chair. Frost brought the matter to the attention of the GRDA legal staff for resolution.

As permitted by state law, the GRDA legal staff had the property in question surveyed to establish its market value and a lease was prepared to compensate the authority for the encroachment. The terms of the lease called for Frost to pay the authority $2300 and some change for the approximate 6500 square feet of GRDA land being utilized by CYC. But since Brady and Company are absolutely certain the authority is not capable of doing its job, they executed an Open Record Request to review the entire CYC file and predictably filed a protest with FERC dated March 5, 2008. Rather than attempt to describe it, I’ll attach it for your review.

One of the more interesting aspects of Brady’s review was the discovery of a deed filed in Delaware County in 1944 which transferred some of the GRDA property in question to the Cherokee Yacht Club. The end result was a reduction in the amount Frost would have to pay the authority annually. I guess a thank you note from Terry to Mike may be forthcoming, but I doubt it.

As you can see by the Brady letter to FERC, the anti-development crowd has seized this opportunity to protest just about everything related to Cherokee over the past fifty years. It’s really a shame to think about both the time and money required by the authority, Frost and FERC to satisfy yet another pointless protest by this group. I guess the cross hairs have now shifted from Harwood and Mullen to Frost.

I plan on submitting a letter of support for the Authority and the Cherokee Yacht club with respect to this issue. I e-mailed Mr. Brady to ask him if he planned to correct his protest to reflect the deed he uncovered and the response was the usual. The deed in question was in the file provided to him with all the other CYC permits and documentation. This man, who is so meticulous in researching every statute that might retard commercial development on Grand Lake, claims it wasn’t in the file. He seems to think it’s just another conspiracy orchestrated by the GRDA legal staff. You be the judge… I know what my opinion is.

Brady Letter

Federal Energy Regulatory Commission March 5, 2008,

888 First Street, N.E.

Washington, D.C. 20426

Attention: Secretary

Project P-1494- Grand Lake

Ref: Protest of Commercial Encroachment into Project Boundary by GRDA Board

Chairman Terry Frost

The attached information describes a substantial and intentional encroachment into the Project Boundary for a commercial purpose. The total encroachment covers over 31,000 square feet on which are built a multi-level concrete retaining wall, landscaping flower beds, commercial dock anchorages, walkways, golf cart paths, restaurant outdoor patio deck, a portion of the actual Yacht Club clubhouse, swimming pool approach, and parking lot Except for the clubhouse encroachment these encroachments began in 1992, three years after the owner, Terry Frost, acquired the Cherokee Yacht Club, and began an extensive commercial dock expansion in Duck Creek. These retaining walls and other improvements were nearly all located within the Project Boundary. No rent or lease was ever executed between Mr. Frost and the GRDA, and to the best of our knowledge, the official files of GRDA show no evidence that any of these encroachments were ever submitted to or approved by FERC.

Cherokee Yacht Club is a private club with substantial membership fees; it is not by any definition a public facility. It is owned by Terry Frost, the current Chairman of the GRDA Board of Directors. These encroachments are designed to enhance, extend, and privatize the public shoreline in front of the Club. The natural shoreline contours have been altered and back-filled. There is no public access, nor provision for the public to use these improvements on a continuous, unrestricted basis without charge, as is the right of the public elsewhere within the Projected Boundary.

These walls and amenities cannot be construed as a erosion prevention” as the GRDA has claimed when the legality of these encroachments was questioned. License Article 410, page 30, describes the criteria for licensee approval without FERC review/approval. These encroachments do not fall within these criteria:

1. No finding of fact that vegetation plantings or rip-rap would not have been adequate for soil retention.

2. Construction did not maintain the basic contours of the reservoir shoreline.

3. Construction was not for a non-commercial purpose and for less than boat slips.

4. Construction was not intended to serve single family dwellings.

5. Construction was not for purposes of erosion control to protect the existing shoreline.

The construction of these concrete retaining walls actually prevents access by the public to the Project Boundary in the effected areas by means of an 840’ long concrete wall from the lake side and a private road with pad-locked gate from the land side. The courtesy docks at the northern end of the Yacht Club are reserved for members and guests of the Yacht Club, and no signs are posted on the docks or shoreline indicating that the boat slips, decks, patio dining tables, walkways, etc. are equally available to the public at no charge and without restriction.

The GRDA has taken the position that the encroachments are to be considered simply as erosion prevention, thereby not requiring FERC approval, nor lease for the use of public property for a private commercial purpose. Apparently, the public is to believe that these encroachments were installed as a public service, although the public is not allowed to use them. Neither the facts in the record, nor Commission treatment of other similar or identical encroachments support this assertion:

1. Safe Harbors- Duck Creek- Submittal 20050207-0017

FERC clearly states expectations regarding encroachments into Project Boundary and GRDA’s responsibility to protect the shoreline from such encroachments.

2. Stockley Encroachment- Submittal 20070316-0182 Commission has not approved this intentional encroachment and construction of patio, fireplace, built-up landing, etc . Under consideration for remedy is removal and return to natural conditions. Also under consideration for remedy is signage and access modifications to indicate the encroaching amenities may be used by the public, as is the rule for all unrestricted shoreline within the Project Boundary. The reasons given by the Commission for rejecting this proposed lease and the remedies suggested by the Commission should become the standard for such encroachments, past and future.

3. Pelican Landing Lease- Submittal 20061117-0076

Lease includes specific language dictating that unrestricted public access shall not be denied to all Project Lands involved in the lease.

4. Arrowhead Retaining Wall/ Queen’s Dredging- Issuance 20030106-0238 Commission letter points out multiple items in which GRDA was in error in exceeding their delegated authority in granting retaining wall and dredging permits:

A. Failure to monitor non-project uses and occupancies for which it (GRDA) grants permits and subsequent failure to correct violations.

B. Exceeding discretionary authority in permitting Arrowhead retaining wall under Article 410.

C. Resource Agencies not given proper opportunity to comment on specific projects because the projects were sent out with only the floating structures included in the plans: not retaining walls, dredging permits, etc. Encroachments were not identified in the plans.

D. Dredging permits (which included material as low as 739 in the footings) were not submitted to FERC, nor the COE. (This dredging and placement of concrete into the Lake at elevations below 745 resulted in 404 Clean Water Act violations and citations from the USCOE, as well.)

In conclusion, the GRDA has not been forthright nor consistent in applying the corrective measures outlined in these and other FERC directives to yet another highly visible marina operator. The Cherokee Yacht Club applications for retaining walls in ‘92, ‘96, and ‘00 did not include proper description of what was to be built. Patios, cart paths, landscape plantings were not shown. Only on the first application in ‘92 was any indication of encroachment onto Project lands ever mentioned. (Mention of this encroachment was not made in the minutes of the GRDA Board Meeting in which the permit was approved.) Minimizing the intent or the scope of these permits to avoid FERC and Resource Agency scrutiny has been a pattern in the past and the record in this case indicates that the trend continues.

Mr. Frost, who serves as Chairman of the Board of GRDA, was in a position to have far more than average access to these past violations by other marinas, as well as his own. Chairman Frost contracted, paid for, and directed the survey in which only a small fraction of these encroachments were identified for the GRDA. Frost also contracted for and paid for the appraisal of his own encroachments which was used to determine the value to be set for the lease. Chairman Frost, through GRDA staff, as well as interviews by Tulsa World reporters and the author of this protest, claims to have only become aware of his own encroachments as a result of a survey performed in conjunction with the sale of his marinas, including Cherokee Yacht Club. The facts in the record indicate otherwise.

A substantial portion of the outdoor amenities of the Yacht Club were knowingly constructed on public property within the project boundary. These improvements should either be removed, or they should be all properly included in the survey to identify the total encroachments on the property for lease. The appraisal for the value of the public land on which these encroachments exist should be properly appraised by three appraisers or competitive bidding for purposes of developing a lease which does not encourage these encroachments in the future. The lease should provide specific provision for the public to be able to enter upon and use the encroachments within the project boundary without charge or restriction as they would other project lands.

I am requesting that the Commission provide a full investigation of the facts, permitting, surveys, and appraisals being used to support these leases of Project Lands, even those in which the intended lessee serves on the GRDA Board of Directors.

Best Regards

Mike Brady

Duck Creek Homeowners Association

Attachments:

GRDA Time Line- Cherokee Yacht Club

Multiple documents from GRDA public record

Photographs of Cherokee Yacht Club dredging and wall construction

Tulsa World Article, “Yacht Club Stirs Controversy”

Banner Article, “The Power Behind the GRDA- Part 7”

Cc

State Rep Doug Cox

State Rep Ron Peters

U. S. Senator Jim Inhoffe

U.S. Senator Tom Coburn