Grand River Dam Authority, 062105 FERC, 1494-251

• Docket Nº: 1494-251
• Party Name: Grand River Dam Authority Impact Rating
• Judge Panel: Before Commissioners: Pat Wood, III, Chairman; Nora Mead Brownell, Joseph T. Kelliher, and Suedeen G. Kelly. Linda Mitry, Deputy Secretary. KELLY, Commissioner, dissenting:
• Case Date: June 21, 2005
• Court: Federal Energy Regulatory Commission

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Grand River Dam Authority

No. 1494-251

United States of America, Federal Energy Regulatory Commission

June 21, 2005

Before Commissioners: Pat Wood, III, Chairman; Nora Mead Brownell, Joseph T. Kelliher, and Suedeen G. Kelly.

ORDER APPROVING NON-PROJECT USE OF PROJECT PROPERTY

1. The Grand River Dam Authority (GRDA), licensee of the Pensacola Project No. 1494, has applied for authorization to permit John Mullen, doing business as Thunder Bay Marina Facility (Thunder Bay), to construct three boat docks at Thunder Bay’s existing commercial marina on the Duck Creek arm of the project’s reservoir, Grand Lake O’ the Cherokees (Grand Lake), located on the Grand/Neshoo River in northeastern Oklahoma. As discussed below, we are granting the application with certain modifications and conditions. This order is in the public interest because it approves the proposed dock construction in a manner that will minimize environmental impacts.

Background

2. Grand Lake, which extends 66 miles upstream of the Pensacola Project Dam, has a surface area of 46, 500 acres and about 1, 300 miles of shoreline. The reservoir’s normal maximum water surface elevation is 745 feet Pensacola Datum (PD).^[1] The project boundary is at the 750-foot PD contour line; thus, the Commission regulates only a strip of land (of varying horizontal distance, depending on the steepness of the terrain) around the reservoir’s perimeter.

3. The Commission relicensed the Pensacola Project in 1992.^[2] Under the recreation plan for the project, which was required by license Article 407 and subsequently approved by the Commission, shoreline development is controlled by demand and site availability.^[3] The recreation plan provides that GRDA will address shoreline development problems as they arise and evaluate the success of this management program over time. The order approving the recreation plan requires GRDA to monitor recreation use and shoreline development levels at the project and to periodically file the results with the Commission.^[4]

4. Duck Creek Cove is a 3-mile-long arm of Grand Lake that runs approximately north-south and enters the main body of the project reservoir about five miles north of the project dam. The cove varies in width from about 2, 600 feet at its mouth to about 700 feet in its upper reaches. Thunder Bay, one of seven marinas in the cove, is located on the western shore, about two miles upstream from the cove’s mouth. At the marina, Duck Creek Cove narrows from approximately 1, 150 feet to about 800 feet.^[5]

5. Thunder Bay was constructed prior to 1967, and it was already in place when the project was relicensed in 1992. The marina originally included three docks, labeled docks A, B, and C, placed from west to east along the cove’s shoreline. In 1996, the Commission authorized GRDA to permit Thunder Bay to construct five additional docks -- docks D, E, F, G, and H.^[6]Dock F was to be located just west of dock A. Docks D, E, and G were to be located just east of dock C. Dock H was to be placed somewhat behind and south of dock G. The proposed docks were to be floating docks, and their installation was not to require dredging or other shoreline development activities, which is still the case.

6. Thunder Bay constructed two of the five additional docks (docks D and E), but did not build docks F and G because it determined that their installation in the originally-approved configuration would conflict with existing docks and adversely affect navigation. Dock H also has not been constructed, although it could have been installed as originally approved.

7. On March 25, 2003, as supplemented on May 1 and May 12, 2003, and on March 8, 2004, GRDA filed an application requesting authorization to permit Thunder Bay to construct docks F, G, and H in newly-proposed locations. ^[7] As now proposed, dock F would be relocated to a position south and east of, and at almost a 90 degree angle to, dock E. Docks G and H would be repositioned south and parallel to dock F.^[8] GRDA states that this will remove any conflict with the Harbors View Marina and alleviate water traffic congestion in the area.

8. On September 11, 2003, the Commission issued public notice of the application. The U.S. Department of the Interior-Office of the Secretary, the U.S. Fish and Wildlife Service (FWS), and the Oklahoma Archaeological Survey filed comments.^[9] FWS does not oppose the proposed dock construction, but states that, given the configuration of the boat docks at the Harbors View Marina on the side of the cove opposite Thunder Bay, the proposed Thunder Bay docks will make navigation more dangerous and restrict access to public waters. It also asserts that the increased shoreline development will have cumulative impacts on fish and wildlife habitat and result in reduced public access to the shoreline.

9. Oklahoma Archeological Survey also does not oppose the application, stating that no known archeological sites are listed as occurring in this area, and that no archaeological materials are likely to be encountered, due to the area’s topography and hydrology. It requests, however, that it be notified immediately if construction activity exposes any such artifacts. Furthermore, Oklahoma Archeological Survey states that there are Native American tribes which may claim cultural interests in and around the project lands.

10. Four owners of lakefront property -- Roger Tucker, president of the Cobblestone Homes, Inc., Jack R. Lenhart, Cheryl Lenhart, and Mike Brady of the Duck Creek Homeowners Association -- intervened in opposition to the proposed dock construction. In addition, Donald Read, president of the Lakeshore Property Owners Association and Lowell Caneday, PhD, who assisted in preparing GRDA’s project recreation plan, filed a protest and comments, respectively.

11. The intervenors and commentors argue that the proposed dock construction will: (1) increase boating congestion, navigational safety hazards, and ambient noise in the Duck Creek Cove channel; (2) degrade the visual character and scenic quality of the cove’s shoreline; (3) decrease public shoreline access; (4) adversely affect fisheries, wildlife, riparian and aquatic habitat, water quality, and shoreline stability; and (5) encroach on Roger Tucker’s property, which is to the south and adjacent to the marina. They also argue that GRDA has failed to apply its rules and regulations governing the use of project shorelands and waters to Thunder Bay’s proposal. Those rules and regulations limit the distance docks can protrude into the cove.^[10]

12. Commission staff conducted an environmental review of Thunder Bay’s proposal to determine whether and under what conditions GRDA’s application should be approved. As a part of the review process, the staff prepared a draft environmental assessment (EA) of the proposed dock construction and provided a thirty-day period for interested parties to file comments on it. The original intervenors -- Roger Tucker, Jack Lenhart, Cheryl Lenhart, and Mike Brady -- submitted comments on the draft EA. Thunder Bay filed comments regarding staff’s analyses in the draft EA. Also, the U.S. Fish and Wildlife Service (FWS), the National Park Service (NPS), and the Oklahoma Department of Wildlife Conservation filed comments. These comments, which generally reiterate concerns previously expressed in response to the notice of GRDA’s application, have all been carefully considered in the final EA, which is attached to this order. Appendix A of the final EA contains staff’s responses to comments on the draft EA. The EA concludes that construction of the marina would have minor to moderate adverse impacts and recommends approving it with certain modifications and conditions.

Discussion

13. The Pensacola Project license includes a standard provision authorizing the licensee to grant permission for certain types of non-project use and occupancy of project lands and waters without prior Commission approval.^[11] However, the marina facilities that GRDA proposes to permit Thunder Bay to build are not within the scope of uses set forth under Article 410, and thus can only be permitted if the licensee files, and the Commission approves, an application to amend the license to allow the facilities and uses in question.^[12]

14. Because of the growing popularity of Grand Lake for recreational boating, boating densities and navigational safety are increasingly important issues. The boating densities on Duck Creek Cove are high relative to the lake as a whole.^[13] Furthermore, as acknowledged by GRDA, most of Grand Lake’s large boat traffic occurs on the Duck Creek arm of the lake.

15. The cove and navigation channel narrow abruptly in the vicinity of Thunder Bay and Harbors View Marinas, and boaters navigating through this area in a south-to-north direction must move west to avoid one of Harbors View’s existing docks, then east to avoid Thunder Bay’s existing dock E. Boaters traveling north to south make similar dock avoidance maneuvers. If dock F were constructed at the proposed location, it would reduce the amount of navigable water available to boaters moving through this constricted channel corridor even further, to approximately 180 feet. At the proposed locations for dock G and H, the distance from shoreline to shoreline (as measured from the 750-foot contour elevation) is approximately 1, 175 feet. Docks G and H would extend approximately 400 feet from the shore, leaving over 700 feet of open water for navigation. Though these docks would not constrict the channel as severely as proposed dock F, they would also reduce somewhat the amount of navigable water.

16. In order to alleviate potentially constricting and crowding impacts of the newly proposed dock construction, we adopt the EA’s...