UNITED STATES OF AMERICA FEDERAL ENERGY REGULATORY COMMISSION Alabama Power Company Project No. 2 165-029 NOTICE OF AVAILABILITY OF ENVIRONMENTAL ASSESSMENT (March 1.2011) In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission’s regulations, 18 C.F.R. Part 380, the Office of Energy Projects has reviewed an application filed by Alabama Power Company on June 5, 2009. requesting Commission approval to permit Mr. Lynn Layton (permittee) to construct and operate three covered 10-slip boat docks and a concrete patio at Cushman’s Marina, located on the Lewis Smith Development of the Warrior River Project (FERC No. 2165). The Lewis Smith Development is located on the headwaters of the Black Warrior River on the Sipsey Fork in Cullman, Walker, and Winston Counties, Alabama, and occupies 2,691.44 acres of federal lands administered by the U.S. Forest Service. An environmental assessment lEA) has been prepared as a part of Commission staff’s review. The EA evaluates the environmental impacts that would result from approving the licensee’s proposal and alternatives, and finds that approval of the application would not constitute a major federal action significantly affecting the quality of the human environment. A copy of the EA is on file with the Commission and is available for public inspection. The EA may also be viewed on the Commission’s website at yyy,.f.çrçoy using the “eLibrary” link. Enter the docket number (P-2165) excluding the last three digits in the docket number field to access the document. For assistance, contact FERC Online Support at FERCOnhineSupport(à),ferc.gov or toll-free at 1-866-208-3676, or for TTY, (202) 502-8659. Any comments should be filed by March 31, 2011. Comments may be filed electronically via internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(I)(iii) and the instructions on the Commission’s website under the “eFiling” link. To paper-file, comments should be addressed to Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street. N.E., Room 1-A, Washington, D.C. 20426. Please reference the project name and project number (P-2l65) on all comments. For further information, contact Mark Carter at (678) 245-3083. Kimberly D. Bose. Secretary. ENVIRONMENTAL ASSESSMENT Non-Project Use of Project Lands and Waters Warrior River Hydroelectric Project FERC Project No. 2 165-029 Alabama

Federal Energy Regulatory Commission Office of Energy Projects Division of Hydropower Administration and Compliance 888 First Street, N.E. Washington, D.C. 20426 March 2011 7.0 PREPARERS Federal Energy Regulatory Commission Office of Energy Projects Federacgycgiilov Commission Division of Hydropower Administration and Compliance Mark Carter, Environmental Biologist, Project Coordinator Warrior River Hydroelectric Project B. Peter Yarrington, Fisheries Biologist FERC Project No. 2 165-029 — Alabama 1.0 INTRODUCTION 1.1 Application Application Type: Non-Project Use of Project Lands and Waters Applicant: Alabama Power Company Water Body: Lewis Smith Lake, located on the Sipsey Fork, a tributary of the Black Warrior River Nearest Town: Trade County and State: Cullman County, Alabama 1.2 Purpose and Need for Action On June 5, 2009, and supplemented on August 6, 2009, August 19, 2009, and June 23, 2010, Alabama Power Company (licensee) filed an application to permit Mr. Lynn Layton (permittee) to construct and operate three covered, 10-slip boat docks and a concrete patio at Cushman’s Marina, located on the Lewis Smith Development of the Warrior River Project (FERC No. 2165). The Lewis Smith Development impounds Lewis Smith Lake (Smith Lake), one of the project’s reservoirs. Article 422 of the project license delegates to the licensee the authority to grant permission for certain types of non-project use and occupancy of project lands and waters without prior Commission approval.2 However, the proposed marina would accommodate 30 watercraft, which exceeds the scope of license article 422. Therefore, The proposed facilities would occupy the same location as two covered, 12-slip boat docks that once occupied the site. The old facilities were installed in the early 1970s, predating the licensee’s shoreline permit program, and have recently fallen into disrepair. The licensee states that use of the two docks ended in 2008, and both docks were removed by October 2009. 2 The original license (18 F.P.C. 327, issued September 12, 1957), included Article 43, which was similar to Article 422 of the current license (See Alabama Power Co., 130 FERC ¶ 62,271, issued March 31, 2010). The licensee’s application was filed pursuant to the previous license, but because the Commission subsequently issued a new license for the project, the licensee’s application will be considered under its new license. -32- -1- the permittee’s proposal can only be granted if the Commission approves the licensee’s 6.0 LITETURE CITED application. Alabama Department of Environmental Management (DEM). 2OlOa. 2010 Integrated Commission staff has conducted an environmental review of the proposal to Water Quality Monitoring and Assessment Report: Water Quality in Alabama determine whether and under what conditions the licensee’s application should be 2008-2009. approved. This environmental assessment (EA), which addresses all relevant issues raised in this proceeding, is being prepared to satis’ responsibilities under the National Alabama Department of Environmental Management (DEM). 2010b. 2010 303(d) List Environmental Policy Act of 1969 (NEPA), and will be used to support the for Alabama (pending EPA approval). Commission’s decision on the licensee’s application. In this EA, Commission staff p//adem.alabama.gov/programs/water/303d.cnt Accessed January 25, 2011. examines the environmental effects associated with the licensee’s proposal (Proposed Action), a staff-identified alternative (Staff Alternative) and the existing conditions (No- Alabama Department of Environmental Management (DEM). 2011. ADEM Water 1 33-6 ADMAdmin Action Alternalive). Division - Water Quality Prograui. uiuui , - Coder. 335-6. Revised effective: January 18, 2011. 2.0 PROPOSED ACTION AND ALTERNATIVES Alabama Power Company (APC). 2005. Application for New License, Major Project 2.1 Proposed Action Existing Dam: Warrior River Project. Volume 4. July 27, 2005. The proposed boat dock facilities at Cushmim’s Marina would be located along the APC. 2009a. Application for Non-Project Use of Project Lands and Waters. Dated and western shore of Pidgeon Roost Creek, which is located off the Ryan’s Creek arm of filed June 5, 2009. Smith Lake, approximately 0.5 miles mile north of where County Road No. 222 crosses that arm of the lake (Figure 1). The proposed facilities would be accessible from County APC. 2009b. Response to Commission staff’s July 2, 2009 additional information Road No. 330. request. Dated (and filed ?) August 6, 2009. Under the Proposed Action, the permittee would install three covered, 10-slip boat A.PC. 2010. Response to Commission staff’s May 24, 2010 additional information docks at the site,3 demolish an existing cement-block boathouse and construct an open request. Dated and filed June 23, 2010. patio in its place, and expand the existing concrete driveway and patio within the project boundary. An existing boat ramp provides access from the boathouse to the water, but Federal Energy Regulatory Commission (FERC). 2009. Final Environmental neither the licensee nor the permittee specifies a plan for the boat ramp. Thus, we assume Assessment for Hydropower License. March 2, 2009. that the existing boat ramp will stay in place but will not be used to launch or retrieve boats. Natural Resources Conservation Service (NRCS). U.S. Department of Agriculture (USDA). 2006. Web Soil Survey 2.1. Accessed via: Each proposed dock would consist of: (1) a 50-foot-long ramp; (2) an equalizing p//websoilsurvey.nrcs.usda.gov/app/WebSoilSurvey.asPx. March 2010. platform; (3) a 78-foot-long central walkway and; and (4) ten 12-foot-wide by 28-foot- long slips (Figure 2). The docks would be constructed off-site and floated to the NRCS. USDA. Official Soil Series Descriptions. 2009. Accessed via: installation area by barge. Each dock would be connected to the existing concrete pj/soils.usda.gov/technicalJclassificationIosd/index.html. March 2010. footings on the shoreline via a hinged walkway, and by two lines running to heavy pins driven into the bank. Each dock would also be anchored to the lake bottom with lines U.S. Environmental Protection Agency (EPA). 2001. Level III and IV Ecoregions of running to cement anchors. The bank lines and anchor lines would be adjusted using Alabama. Accessed via: http://www.epa.gov/wedJpaes/ecoregions.htm. March winches mounted on the docks to keep the docks in position. 2010. Yokley Environmental Consulting Service. 2009. Environmental assessment for habitat Commission staff would expect these three boat docks to accommodate a and the possible presence of flattened musk turtle. April 26, 2009 maximum of 30 watercraft at a time, one watercraft per slip. -2- -31- Such changes would ordinarily be regulated by local zoning ordinances, but Commission staff could not identify any zoning ordinances that exist in Culiman County. 5.0 CONCLUSIONS AND RECOMMENDATIONS We have examined the environmental effects of the Proposed Action, Staff Alternative, and the No-Action Alternative. Neither the Proposed Action, Staff Alternative, nor the No-Action Alternative would constitute a major federal action significantly affecting the quality of the human environment. However, even with staff’s recommendation for a landscape plan/buffer, permit conditions to ensure consistency with project purposes, and steps to protect undiscovered cultural resources, minor adverse effects would still occur to geology and soils, fisheries, and aesthetics and moderate adverse effects would occur to land use from the proposed facilities. Some of the adverse effects described above could be effectively mitigated as contemplated in the Staff Alternative by reducing the number and footprint of the proposed boat docks, eliminating the proposed patio, removing the existing building and driveway from the project boundary, and restoring the shoreline buffer with native vegetation, along with requiring a sediment and erosion control plan. Implementation of the Staff Alternative, including staff’s recommendations described above for the Proposed Action, would reduce the adverse effects to geology and soils, water quality and quantity, fisheries, land use, and aesthetics, and only minor effects to these resources would remain. If the No-Action Alternative is chosen, Commission staff does not recommend any additional measures because no adverse environmental impacts would occur.

Based on the information available to us, and the analyses and evaluations included in this EA, we recommend that the Commission implement the Staff Alternative. The following key factors influenced our decision to recommend reducing the scale of the proposal and implementing the Staff Alternative: (1) allowing two boat docks rather than three strikes a reasonable balance between allowing shoreline facilities that promote public access to the lake and shoreline while protecting those project resources; (2) the footprint of the marina described in the Staff Alternative would be similar to what previously existed at this site, would be less inconsistent with the licensee’s commercial marina guidelines, and would be less likely to interfere with adjacent property owners’ use and enjoyment of the lake in comparison with the Proposed Action; (3) the adverse impacts to project resources, particularly the moderate impacts on land use, would be reduced to only minor effects in comparison with the Proposed Action; and (4) the adverse impacts to adjacent land use, especially those outside the project boundary as described in Section 4.4 (Cumulative Effects Analysis), are not under the Commission’s jurisdiction or control.

Navigational lighting would be installed on each dock. No fuel-dispensing or sewage-pumping facilities are proposed. The docks would be available for rental by the general public, and the marina would be operated for commercial purposes. Outside of the project boundary, the permittee would provide facilities for parking, restrooms, and trash disposal. The licensee considered the proposed facilities within its commercial permitting guidelines.4 As proposed, Cushman’s Marina would occupy an on-the-water footprint of The licensee’s General Guidelines for Commercial Use of Project Lands and Waters were developed pursuant to Article 43 of the original license (which is identical to Article 422 of the new license). These general guidelines set forth general standards for site conditions, structure dimensions, and other considerations that must be met in order for the licensee to consider an application for non-project uses of project lands and waters. The licensee reserves the right to make exceptions to the guidelines at any time.

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14,682 square feet, which is approximately four times the allowable footprint set forth in the commercial guidelines. The licensee allowed a variance for this structure dimension because of the proposal’s overall benefits to aesthetics and recreational opportunities. Previously existing at this location were two covered, 12-slip boat docks that had fallen into disrepair. One was removed from the lake prior to the licensee’s initial filing on June 5, 2009; the other was removed in October 2009. This EA considers the environmental effects of the installation and use of the proposed facilities on the existing resources of the Pidgeon Roost Creek area of Smith Lake (i.e., no boat docks currently exist at the proposed marina location, and no boating activity has likely occurred there for several years). Where appropriate, it also compares the effects of the proposal to the historical use of the site. Since the licensee’s application was filed, the Warrior River Project received a new license. License article 418 requires the licensee to file a revised shoreline management plan (SMP) by March 31, 2011, and approves the shoreline classification maps filed by the licensee on July 28, 2005. The approved shoreline classification maps elassif’ the shoreline as Multiple Use Lands for the shoreline at the proposed Cushman’s Marina.6 2.2 Staff Alternative Commission staff is considering an alternative site layout that limits the number and size of the proposed boat slips, as well as minimizes the potential effects to the scenic and environmental values of the project. The Staff Alternative would be similar to the Proposed Action, except for three important differences: (1) the permittee would only be authorized to construct two, ten-slip boat docks instead of three; (2) the permittee would not be allowed to construct the patio, would be required to remove the block building, concrete foundation, and concrete driveway within the project boundary, and would be required to restore the land inside the project boundary with native riparian vegetation; and (3) the permittee would be allowed to construct simple walkways to access the two dock facilities. This alternative would require the proposed docks to be more consistent with the licensee’s commercial marina guidelines, allow approximately the same sized marina as what was previously located at the site, and restore the shoreline buffer within the project boundary. The modified facilities should comply with all applicable standards licensee’s commercial guidelines allow 1,000 square feet of footprint per 100 feet of shoreline. The proposed Cushman’s Marina occupies 366 feet of shoreline, so it would be allowed an on-the-water footprint of 3,660 square feet. Multiple Use Lands include, but are not limited to, the following uses: residential waterfront development, industrial facilities, business parks, industrial water access, wildlife management, and agriculture. and (2) minor benefits to aesthetics that would occur from the site being rehabilitated.” We also note that under the No-Action Alternative, the licensee would not be precluded in the future from filing an application for non-project use of project lands and waters under any approved shoreline management plan or authorizing a use that is consistent with the standard land use article. 4.4 Cumulative Effects Analysis According to the Council on Environmental Quality’s regulations for implementing NEPA, a cumulative effect is the effect on the environment that results from the incremental effect of the action when added to other past, present, and reasonably foresecabic futurc actions, egardiess of what agency or person undertakes such other actions. Commission staff has identified that cumulative effects could potentially occur to land use in the vicinity of the proposed marina. Several adverse impacts to land use outside the project boundary were identified by the Residents and County Commissioner. Specifically, they claim that the only road leading to the proposed marina is narrow, in poor condition, and inadequate to handle increases in traffic. Further, they state that the road physically lies outside of its easement and on the property of several land owners, and that Cullman County camsot afford to realign the road. Finally, several commenters express concern over the adverse effects to land use that the proposed parking area would cause. The road, parking area, and restrooms would be located on lands outside of the project boundary. While these facilities may cause sdverse effects, as noted above, they are not part of the proposed facilities within the Commission’s jurisdiction. The use of the road and the construction and operation of the parking area and restrooms would be subject to state and local jurisdiction. Several commenters also express concern over the adverse effects to land use that the proposed parking area and restrooms would cause. The proposed lots where the proposed marina would be located are residential lots in a subdivision located between residential lots on either side. The area outside tbe project boundary on which the parking lot would be located and where the restrooms would be located currently exists as what appears to be a single-family residential dwelling. Converting this parcel to a commercial marina operation with parking and restroom facilities to accommodate the users of up to 30 watercraft would constitute a substantial change to the historical use. “Commission staff would expect the licensee to inspect and ensure that the existing non-project uses along the shoreline do not adversely affect the environmental characteristics of the project, including aesthetics, and to take appropriate actions to remedy any adverse impacts. Thus, these aesthetic benefits should be realized by the licensee even if the No-Action Alternative is chosen.

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- 29 - Enyironmental lfrects of Proposed Action Because no known cultural resources or historic properties occur at the location of the proposed facility, Commission staff finds that approval of the Proposed Action would not affect historic properties at the project. In its March 31, 2009 letter, the SHPO recommends that construction activities cease and it be contacted if any artifacts or archaeological features are encountered. Although construction of the proposed boat docks is unlikely to affect historic or cultural resources, the licensee should include conditions in the permit issued for the proposal in order to protect previously unidentified resources. The conditions should require the permittee to: (1) cease all work at the site immediately; and (2) immediately contact the licensee if previously unidentified historic or cultural resources are discovered during construction of the proposed facility. In turn, the licensee should consult with the SHPO, and any tribes that might attach religious or cultural significance to the discovered materials, to determine what steps need to be taken to evaluate the discovery and, if found to be eligible for National Register listing, to mitigate any adverse effects. The licensee should file with the Commission for approval, a report on any discoveries determined to be eligible and adversely affected, along with the proposed mitigation.

(i.e., setbacks, maximum allowable length, boat slip dimensions, spacing between docks, etc.) with the exception of the total footprint area, which would be exceeded.

Environmental Effects of Staff Alternative Under the Staff Alternative, the effects on historic and cultural resources, and the staff recommendation regarding unanticipated discoveries, would be the same as those described for the Proposed Action.

4.3 Effect of No-Action Alternative Under the No-Action Alternative, the licensee’s request to authorize the permittee to construct the proposed docking facilities would be denied, and current conditions and uses at the site would persist. Under the No-Action Alternative, several of the adverse effects described for the Proposed Action and Staff Alternative would be avoided, including: (I) minor effects on geology and soils from construction, expansion of the concrete areas, and increased boating activity; (2) minor effects on fisheries from construction and increased boat traffic; (3) minor effects on adjacent land use from noise related to construction and operation of the patio and docks; (4) minor effects on aesthetics from the docks’ inconsistency with the size and residential use of adjacent docks; and (5) moderate effects on adjacent land use from the docks’ large footprint. Although implementation of the No-Action Alternative would allow many adverse effects to be avoided, it would also mean that two beneficial effects would not be realized, including: (1) minor benefits to fisheries habitat that the docks would provide;

2.3 No-Action Alternative

The

Under the No-Action Alternative, the licensee’s request would be denied and existing conditions at the site would persist. Existing conditions within the project boundary include the presence of a dilapidated building, deteriorating driveway, and remnants of the former dock facilities that were once located there. The two boat docks that once existed at this location have been removed, and no boats have used the docking facility for several years. The licensee has an on-going responsibility to oversee and control the site to ensure that uses and occupancies (i.e., the driveway, block building, boat ramp, and any other allowable facilities) do not adversely impact project purposes and resources. Consistent with these responsibilities, the licensee would be required to take appropriate measures to restore the site in order to ensure that the existing facilities would not adversely impact the project’s environmental resources. Choosing the No- Action Alternative would not preclude the licensee from applying in the future for a different non-project use of project lands and waters under any approved shoreline

Figure 2. concrete project boundary is the 522’ contour line (hashed line). Source: APC 2009a.

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-5- I -- - -... .-- ..-. -..— - - - -...—.-. --. --—...... —.....—-.... ———.—,..--..— IWb .a.. .% ..It.4 .—...... I.n... •.. ‘•flaAt& •i.. .._ l— .. management plan or authorizing a use consistent with the project license’s standard land use article.

3.0 CONSULTATION AND PUBLIC NOTICE

3.1 Pre-Filing Consultation

The permittec provided copies of its marina permit application to state and federal resource agencies for review and comment before submitting it to the licensee. The following agencies provided written responses, copies of which were included in the licensee’s application filed with the Commission: Agency Rcappnse Letter Date Alabama Department of Conservation and Natural Resources — Natural Heritage Section (DCNR-Hcritage) DCNR — Lands Division (DCNR — Lands) DCNR — Marine Police (Marine Police) Alabama State Historical Commission (SHPO) Alabama Department of Environmental Management (DEM) DCNR — Wildlife and Freshwater Fisheries (DCNR - Wildlife) U.S. Fish and Wildlife Service (FWS) U.S. Army Corps of Engineers (Corps) The DCNR-Heritage, DCNR-Lands, Marine Police, and DEM do not object to the proposal. The DCNR-Hcritage provided general information regarding sensitive species that occur in Cullman County. The Marine Police requires that navigational lighting be installed to increase safety. The SHPO states that the proposal would not affect any known cultural resources listed in or eligible for listing in the National Register of Historic Place (National Register), and recommends that work stop immediately and the SHPO be contacted if any artifacts or archaeological features are encountered during construction. The DCNR-Wildlife comments that the proposal is unlikely to impact any state- protected species, no net less of stream fl.mctions or habitat should occur as a result of the proposal, state water quality standards should be strictly followed, and that rip rap should be used rather than sea walls to protect shallow-water habitat. By letter dated March 9, 2009, the FWS responded to the permittee that the flattened musk turtle (Sternotherus depressus), federally-listed as threatened under the Endangered Species Act (ESA), may occur in the area, and that a survey should be conducted to determine whether the flattened musk turtle inhabits the area. The permittee provided the results of a survey, conducted April 2 through April 4, 2009, to the FWS

The information provided by the Marine Police indicates that watercraft densities un Pidgeon Roost Creek do not often create unsafe boating conditions or navigational hazards that result in accidents or deaths. Further, in its March 23, 2009 letter, the Marine Police comment that it does not object to the proposal, and recommends that the docks be lighted at night. Because the proposed marina would meet the length requirements in the licensee’s commercial guidelines (i.e., less than 150 feet long and less than one-quarter cove width), and because the proposed facilities would extend approximately the same distance into the lake as the docks that were formerly there, we do not find that adverse effects to public safety would occur. Installation of the proposed facilities would result in an additional 30 boat slips to individuals in the area who do not own property with access rights to the reservoir or who cannot have a dock located along their shoreline area due to environmental or topographical constraints. Approval of the proposed facilities would contribute to some additional boat traffic in the area, but any increase in traffic resulting from approval of the proposal would be minimal compared to the authorized watercraft capacity that previously occupied the location (i.e., a result of 6 additional slips). tn general, we do not expect approval of the Proposed Action to have measureablc effects on recreation at the project. Environmental Effects of Staff Alternative Under the Staff Alternative, the number of authorized slips would be reduced to 20. This number is ten less than the Proposed Action and four less than what previously existed at the marina. This would reduce the amount of boat traffic in Pidgeon Roost Creek associated with the facility, but this change would also cause a minor reduction in the number of slips available for residents of the Pidgeon Roost Creek area who lack shoreline access or are precluded from having private docks due to environmental or topographical constraints. Overall, implementation of the Staff Alternative would not likely have measurcable effects on public recreation at the project.

4.2.7 Historic and Cultural Resources

Affected Environment

A residential marina previously existed at the location of the proposed commercial marina, and thus this area has experienced human disturbance for many years. Staff has not identified any known historic properties or archaeological sites in the vicinity of the proposed dock facility. By letter dated March 31, 2009, the SHPO states that the proposed activities would not affect any known cultural resources listed on or eligible for listing on the National Register of Historic Places (National Register).

March 3, 2009 March 10, 2009 March 23, 2009 March 31, 2009 April 7, 2009 April 17, 2009 April 21, 2009 April 24, 2009

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- 27 - Informal recreation sites associated with the boat ramps are utilized for fishing, camping, and picnicking. Most existing docks within Pidgeon Roost Creek are private, residential docks. The recreation facilities located closest to the location of the proposed dock facilities include the privately operated Ryan Creek Marina and Big Bridge Campground, and the public Big Bridge Bank Fishing area, which are located approximately one mile away by water. Ryan Creek Marina offers 460 dry-stack boat storage slips, dock facilities with a capacity of 30 watercraft, a boat launch ramp, fuel sales, boat repairs, and other services. The licensee filed data gathered by the permittee during May and June 2010 reflecting the estimated daily usage of Pidgeon Roost Creek. During peak boating season, generally from May to August, estimated weekday (Monday — Thursday) use was about 20 boats per day, Fridays and Saturdays about 90 boats per day, and about 65 boats per day on Sundays. The licensee also states that, according to its review of a report by the Marine Police of all accidents on Smith Lake since 1997, only 3 accidents, none of them fatalities, have occurred in Pidgeon Roost Creek during this time. Environmental Effects of Proposed Action The Residents point out that the Ryan Creek Marina has available capacity (i.e., at least 100 slips are currently available for rent) to accommodate the same number of boats that could use the proposed Cushman’s Marina. They allege that since the opening of the Ryan Creek Marina, increased boat traffic in Pidgeon Roost Creek has caused damage to their private docks and jeopardizes their safe use of the lake, and that approval of the licensee’s proposal would further exacerbate these problems. The Residents also assert that their safety would be jeopardized, particularly for residents located adjacent to the proposed facility location. Further, they believe that the length of the proposed facilities would force boat traffic closer to the east shoreline of Pidgeon Roost Creek, endangering people that may be in the water or on their private docks. Approval of the proposed facility would add an additional 30 watercraft in Pidgeon Roost Creek. According to the informal boat count performed by the permittee, if all boats moored at the proposed facility were operating at one time, this would be an increase of approximately 150% for weekdays, 33% for Fridays and Saturdays, and 50% for Sundays. Of course, it is highly unlikely that all boats moored at the proposed facility would be used at the same time, so the overall potential increase in boat traffic would likely he much smaller than these estimates. With regard to the Residents’ assertion that the Ryan Creek Marina could accommodate the watercraft that would use the proposed facility, such an arrangement would not necessarily reduce the number of watercrafl that travel in Pidgeon Roost Creek. Further, the licensee explained that the nearby marinas have operated in the area for years under different names; thus, the assertion that the opening of these marinas caused an increase in boat traffic is not likely. that concluded that neither the species nor its habitat was present in the area. By facsimile dated April 21, 2009, the FWS states that it concurs with the determination that no federally-listed threatened and endangered species, or their critical habitats, would be affected by the proposal. The Corps states its approval of the proposed work, noting that a permit may be needed from the State of Alabama if construction occurs on state-owned water bottom. The Corps also recommends that bulkheads be placed at or above the ordinary high water elevation.

3.2 CommissiOn’s Public Notice

The Commission issued a public notice of the application on July 2, 2009, that set a deadline of August 3, 2009, for filing comments, protests, and motions to intervene. Several comments and motions to intervene were received. Unless otherwise noted, the environmental concerns identified in these comments and motions will be analyzed below in Section 4.0 (Environmental Analysis).

3.2.1 Interventions cjdycok

On July 16, 2009, Mr. Cook filed a protest and motion to intervene that states that his property would be adversely affected because the large marina would be an eyesore, increased boat traffic would be excessive and would increase erosion of his shoreline. Further, Mr. Cook states there are no measures for noise control, and water quality would degrade because no restroom facilities would be provided. j4gcon Roost Residents The Pidgeon Roost Residents (Residents),7 a group of adjacent, nearby, and within line-of-sight property owners, filed a motion to intervene on August 3, 2009. The Residents indicate that they were not properly notified of the proposal, pursuant to the licensee’s shoreline permitting regulations, prior to the application being filed with the Commission, nor was Culiman County notified. The Residents state that they have noticed severe erosion of their properties due to increased boat traffic as a result of the construction of the Waterford Condominium Development, which is located approximately one mile away from the proposed marina, and contend that the proposal The Residents group consists of the following individuals: Kathy Perdue Scott, Teresa Myers, Clay and Wendy Cook, Michael Thomas, Samantha Higginbotham, Morris and Ruby Winnett, Jerry and Lori Callahan, Joseph and Regina Freeman, Russell Adams, Robert Marks Jr., Jeri Marks, Robert Marks Sr., and Rosalie Marks.

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-7- would exacerbate this erosion problem. They further comment that muddy water from wake erosion extends 25 to 60 feet from the shoreline during periods of peak boat traffic. The Residents state that it seems irresponsible, if not illegal, to operate a recreational facility without offering bathroom facilities or trash receptacles, and note that there is no public sewer line to the property or any data regarding the percolation ability of the property to accommodate raw sewage. The Residents are concerned that, without an alternative, patrons of the facility would resort to using the lake and surrounding land for personal waste and trash disposal. Likewise, the Residents take issue that the proposal does not include a plan to protect the safety of recreational users in the vicinity of the facility, specifically individuals recreating near the surrounding residential lots. The Residents question the fact that the location of the proposed facilities was an existing marina. While the Residents acknowledge that two boat docks previously existed on the property, which fell into disrepair and were removed, they cannot recollect the facility being operated as a commercial marina, and state that no commercial activity has been occurring at the location for several years. The Residents comment the previous facilities were primarily used by owners of mobile homes located on a nearby parcel, and that no such facilities are included in the list of recreation facilities available on the licensee’s website. Thus, the Residents maintain that the licensee did not consider the facility to be a public marina. According to the Residents and Cullman County Commissioner Wayne Willingham, County Road No. 330 is inadequate to handle increases in traffic. Mr. Willingham comments that the road is very narrow, the condition of the road is poor, and Cullman County cannot afford the needed repair work. Further, Mr. Willingham indicates that the road physically lies outside of its easement and on the property of several land owners, and that Cullman County cannot afford to realign the road. The Residents object to the use of the road crossing their property for access to the proposed facilities and would consider any use of their property to access the facilities to be trespassing. The Residents and Mr. Willingham believe that the Commission should not approve the proposal since one of the largest commercial marinas on the lake, Ryan Creek Marina, is located approximately 1 mile away by water. The Residents state that the manager of Ryan Creek Marina stated that over 100 boat slips were available at that location. The Residents believe that Ryan Creek Marina could accommodate the watercraft that would use the proposed facility, preventing the increases in erosion and other impacts they anticipate under the licensee’s proposal. The Residents comment that the proposed facilities are nearly 4 times as large as allowable under the licensee’s permitting guidelines, and that the application fails to demonstrate that the docks meet the criteria regarding the maximum length, property line adversely impact project purposes and resources. In this regard, Commission staff would expect the licensee to inspect and ensure that non-project uses along the shoreline do not adversely affect the environmental characteristics of the project, including aesthetics. In turn, the licensee would be expected to take appropriate actions to remedy any adverse impacts, including, but not limited to, requiring the removal of any dilapidated structures within the project boundary. The removal of the dilapidated block building would further increase the aesthetic appeal of the facility location, since it would be removed from the view of surrounding residences and recreationists on the lake. However, the proposed three covered boat dock structures would have long-term, minor, adverse effects to the aesthetics of the area because the covered docks would not be consistent with the size and residential use of existing boat docks in the immediate area. In summary, the Proposed Action would cause moderate, adverse effects to land use, minor, adverse effects on aesthetics, and minor, beneficial effects to aesthetics at the project. Environmental Effects of Staff Alternative Under the Staff Alternative, the effects on land use and aesthetics would be similar to the Proposed Action, although reduced in scale. Minor, temporary, adverse effects of noise would still occur during the construction and installation boat docks. The minor, long-term, adverse effects of noise due to the area being converted to a commercial marina would be minimized because fewer watercraft would be authorized and removing the patio would minimize the noise concerns from congregating users. The footprint of two docks would still be larger than that allowed in the licensee’s commercial guidelines, but would be less inconsistent with those guidelines and more similar to the facilities that previously existed at this location. The aesthetic impacts would be incrementally reduced as the docks would be of similar size and configuration to those that previously existed at the marina site. Although the impacts would be reduced compared to the Proposed Action, there would still be minor, adverse effects to land use and aesthetics because of the size and character of the proposed use, including the operation of a commercial facility in a residential area.

4.2.6 Recreation

Affected Environment

The 21,200-acre Smith Lake and adjacent lands have 34 recreation facilities that provide boating, fishing, swimming, hiking, camping, and day-use areas. Most of these are commercially operated, while others are operated by federal, county, state, and local entities, as well as the licensee. There are 45 boat ramps on Smith Lake and the nearby tributaries that provide a variety of services including fuel, docking, and launching. Of the 45 boat ramps, 13 are usable at the existing winter pool elevation of 496 feet msl.

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-25 - Environmental Effects of Proposed Action Under the licensee’s proposal, the permittee would be authorized to install three covered docks for commercial use. The proposed commercial marina would constitute a change from its historical use as a residential marina. Implementing the Proposed Action would also allow the construction of an additional boat dock (i.e., a total of three) that nearby residents, boaters, and recreationists would not be accustomed to seeing (as compared to historical use). We would anticipate additional effects to nearby residents due to the construction and operation of the patio and boat docks. Minor, temporary, adverse effects of noise would occur during the construction and installation of the patio and boat docks. Minor. long-term, adverse effects of noise would occur during the operation of the docks and patio, as this area would serve as an area of congregation for the passengers of up to thirty watercraft. In many instances, providing public access and congregation areas along the waterfront could serve the public interest, but in this instance, the proposed marina area is surrounded by residences on both sides of the lake and would likely cause adverse effects on adjacent land uses. Further, this marina has traditionally been operated as a residential marina to serve off-water lots rather than a commercial use where members of the public could congregate. Adverse effects to land use could also be expected because of the topographical constraints of the area. The permittee proposes to install three covered docks along 366 feet of shoreline; these docks would have a total footprint of approximately four times the total allowable footprint under the licensee’s commercial guidelines. According to the Residents, at least one of the previous docks likely was sited across an adjoining resident’s lot line. The licensee’s application did not show the location of the proposed docks with respect to both adjacent landowners’ properties, but Commission staff expects that at least one of the three proposed docks would affect shoreline access by at least one adjacent landowner, especially because three docks are now proposed where two once existed. Considering the limited amount of shoreline occupied by the permittee, the close proximity of adjacent landowners’ property to the proposed marina, and the challenge to fit three docks into such a limited space, we find that land use adjacent to the proposed docks would experience moderate, long-term adverse effects. These effects could only be mitigated by a revised dock configuration or a reduction in the number of docks, as contemplated in the Staff Alternative. During the course of this application process, the permittee removed the previous docks because they were in a state of extreme disrepair, and one dock had partially sunk, exposing only the roof above the water. Removal of those dilapidated docks provided a benefit to the aesthetic character of the proposed marina area. However, as the project licensee, Alabama Power Company has an on-going responsibility to oversee and control facilities and uses of project property to ensure that such uses and occupancies do not setbacks, and distance separating docks. The Residents comment that the licensee did not provide justification for allowing a dock that does not conform to the size requirements, and that the previous docks encroached within the setback from the adjacent property. Further, the Residents allege that the proposed facilities have been dubbed a commercial marina to allow the installation of covered docks, and believe that the remainder of the property would be developed for another commercial use, under which the permittee would not be able to construct covered docks.8 In addition, the Residents are concerned about runoff into the lake from the proposed parking lot and patio and demolition of the existing building. 3.2.1 Response Comments In a letter dated July 31, 2009, the U.S. Department of the Interior, Office of Environmental Policy and Compliance (Interior) states that the proposal would not adversely affect federally-listed species or critical habitat. The Corps filed comments on September 2, 2009, which were subsequently amended by comments filed September 16, 2009. The Corps indicates that it does not require permits for the proposal. Comments on the licensee’s application were filed by the following individuals: Jef Freeman, Cathy Buhring, David Loper, P.S. McCain, John Grant, Susan Davis, Tania Leigh Norwood, Horace Ward, Earl Gaspard, Lisa Winkler, and Claude Earl Fox. Each of these individuals oppose the licensee’s proposal. Generally, the commenters state that they were not notified of the proposal, that approval of the proposal would cause significant increases in boat traffic in that section of the lake, and that the proposal would therefore result in safety hazards and increased shoreline erosion on their property. Some of the commenters feel that additional marina capacity is unwarranted due to the availability of a large commercial marina approximately 1 mile downstream of the proposed facility location. In addition, the commenters are concerned that the size of the proposed facilities is larger than that allowed under the licensee’s shoreline permitting guidelines, and comment that increased vehicular traffic on the road to the facility would damage the roadway. By letter dated August 9, 2010, Clay Cook, a local resident, filed a response to the licensee’s June 23, 2010 filing. Mr. Cook states that the restrooms and trash facilities should be depicted and included in the proposal. Since those facilities would be located outside of the project boundary, and subsequently outside of the Commission’s jurisdiction, the impact of the location of those facilities will not be analyzed in this EA. Mr. Cook also expresses concern for the accuracy of the lot lines in the licensee’s August 8 The licensee’s commercial guidelines indicate that marinas are the only type of commercial facility allowed to include covered dock facilities.

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-9- 9, 2010 filing. It appears that Mr. Cook misconstrued the licensee’s labeling of photographs as lot lines, and as such, this concern will not be further addressed in this EA. 3.2.3 Licensee’s Response to the Resident’s Intervention By letter dated August 19, 2009, the licensee filed a response to the Residents’ intervention. The licensee describes its 3-stage permitting process for such proposals, the second stage of which entails consultation with the relevant federal and state resource agencies, and property owners or others who may be impacted by the proposal. The permittee informed the licensee that it received no negative responses from adjacent property owners, but the permittee did not provide witten correspondence documenting this consultation. In response to the Residents’ statement that they received no notice of the proposal prior to the application being filed with the Commission, the licensee did not confirm or deny the allegation but points out that the Residents’ concerns are now before the Commission and will be considered through Commission staffs review and evaluation of the proposal. The licensee indicates that it considered the proposal in the context of its commercial permitting guidelines, and that the proposed facilities conform to the length, spacing, and setback requirements. The licensee states that the size of the individual slips for a commercial marina is not based on a suggested measurement, but may be any size deemed appropriate by the licensee. The licensee acknowledges that it has allowed a variance from the commercial guidelines that typically limit the allowable square footage of facilities to 1,000 square feet of footprint per 100 linear feet of shoreline, but that if circumstances warrant, it would approve facilities either larger or smaller than required by the guidelines. The licensee explains that the variance was allowed in this case because of the overall benefits to aesthetics and recreational opportunities that would result from redevelopment of the proposed location. The licensee believes that allowing the larger square footage in exchange for the clean-up of the site was a beneficial compromise. By letter dated June 23, 2010, the licensee further addressed the Residents’ concerns regarding erosion and boating traffic. In that letter, the licensee states that, to its knowledge, there is no documented evidence of increased erosion in the vicinity of the proposed Cushman’s Marina. The permit applicant has attested to the licensee that there has been no increase in erosion since Ryan Creek Marina and Waterford Condominiums opened, and the licensee has not received any complaints about increased erosion or other problems since these business changes. The licensee also included supporting photographs of the shoreline adjacent to the proposed Cushman’s Marina. Regarding the potential for increased boating traffic, the licensee included an informal boat count survey performed by the permittee and boating accident information from the Marine Police.

Because no flattened musk turtles were found at the project site, and the FWS concurs with the findings of the survey, no effects to federally-listed threatened or endangered species would occur from approval of the licensee’s proposal. Environmental Effects of Staff Alternative Under the Staff Alternative, the effects of construction of two dock facilities on terrestrial and wildlife resources would be the same as those described for the Proposed Action. The effects of replacing concrete fixtures with native riparian vegetation would cause long-term, minor, beneficial effects on terrestrial and wildlife resources. These beneficial effects include improving the ground’s ability to absorb and filter rainwater before it enters the lake, and providing some habitat benefits for small mammals (mice, chipmunks) and songbirds by providing cover and forage.

4.2.5 Land Use and Aesthetics

Affected Environment:

Smith Lake offers unique, scenic views, as it is one of the largest lakes in the region. The terrain around the lake is characterized by steep to hilly terrain that is partially covered with timber and forest. Streams, coves, rock bluffs and outcroppings are evident. Since the reservoir spreads into several branches, there are no single vantage points in which to view the entire reservoir. However, vantage points located at recreation sites and near bridges offer views of the shoreline, which are a mixture of forest and development. Boating around the reservoir offers diverse views. Aerial photography indicates that a moderate amount of residential development, including waterfront properties with individual docks, has occurred along Pidgeon Roost Creek. The proposed marina is located in an area immediately surrounded by residential development, and several adjacent landowners own and maintain individual, residential docks within the viewshed of the proposed marina. Some of these individual docks are covered, and some are uncovered. The location of the proposed facilities is currently developed and has been historically used as a residential boat docking facility that served off-water, trailer lots in the neighborhood. The area within the project boundary consists of grasses and forbs interspersed among the bulkheads for the previous dock facilities and boat ramp (APC 2009a). The remainder of the land in proximity to the shoreline includes a concrete block building, paved driveway, and sandstone outcrop. The concrete block building is in a state of neglect and detracts from the aesthetic character of the shoreline. The two dilapidated boat slips that once existed at the site have been removed. The Residents suggest that at least one of the previously existing docks crossed over the setback line of an adjacent property.

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- 23 - In summary, we would expect construction-related disturbances to generally have localized, short-term, minor adverse effects to fisheries in the immediate vicinity. Operation of the facilities should likely have no more than very minor adverse effects to fisheries.

Environmental Effects of Staff Alternative

Effects on fisheries under the Staff Alternative would be similar to those described for the Proposed Action. However, because the Staff Alternative would authorize only two ten-slip boat docks rather than three, and would require installation of a vegetation buffer to reduce runoff from the new facilities, effects to fisheries tied to changes in water quality would be reduced. Effects to fisheries from increases in boat activity would also be reduced. However, the installation of two docks rather than three would decrease the benefit of providing new cover and habitat for surface-oriented juvenile fishes and some adult fishes in the area.

4.2.4 Terrestrial and Wildlife Resources

Affected Environment

The mosaic of forests and open fields in the project area provide an abundance of wildlife habitat. The forest type and vegetative communities have a large influence on the wildlife community. Forested areas surrounding Smith Lake are known to shelter a variety of mammal species such as gray fox, white-tailed deer, woodchuck, fox squirrel, and gray squirrel. A survey for the flattened musk turtle, a federally-listed species, was completed prior to the licensee filing the application, and no turtles were found. An associated variety of ganiebirds, songbirds, reptile, and amphibian species also make use of forested sites in the vicinity. However, the location of the proposed facilities is currently developed with a driveway and concrete boathouse, and has been historically used as a residential marina. Current conditions on the site lack significant terrestrial vegetation and wildlife habitat, and are not conducive to wetland formation. EnvironmenLEf.ffecsfYroosed Action The licensee’s proposal includes land disturbing activities within and adjacent to the project boundary, including the demolition of the existing block building and conversion of its concrete pad into a covered patio area, and the expansion of the paved driveway area to the east of the patio. Because the location of the proposed facilities is currently developed and the existing terrestrial and wildlife habitat is of very low value, implementing the Proposed Action would not affect terrestrial or wildlife resources.

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4.0 ENVIRONMENTAL ANALYSIS In this section, we discuss the potential effects of the Proposed Action, Stall Alternative, and No-Action Alternative on various environmental resources. For each resource, we describe the existing environment then analyze the expected environmental effects of each alternative. This EA largely focuses on the resources in the area of the Proposed Action, namely Pidgeon Roost Creek and adjacent areas. Except where noted, information on existing resources is drawn from the March 2, 2009 Final Environmental Assessment (FEA) prepared by Commission staff during project relicensing. 4.1 General Description of the Project and Development Area Smith Lake is located in the headwaters of the Black Warrior River on the Sipsey Fork in Cullman, Walker, and Winston Counties, Alabama. The topography of the region, which lies within the Southwestern Appalachian physiographic province, includes mountainous terrain, rolling hills, plateaus, and meandering flood plains. The climate is temperate, with warm, humid summers and relatively short, cool winters. Average winter temperatures in the area typically range from 42° to 46° Fahrenheit (°F), and summer temperatures typically range from 77° to 80° F, although summer temperatures often reach the 90’s, and winter temperatures can dip below 32° F. Mean annual precipitation, occurring primarily as rainfall, is about 54 inches. Water resources within the area are managed for a variety of uses including hydroelectric generation, flood control, water supply, environmental management, navigational flow augmentation, and recreation. Lands in the project area include forest tracts and scattered fields, with some residential areas and farms. Out of the project’s total generating capacity of 211.5 megawatts (MW), the Lewis Smith Development contributes 157.5 MW. The licensee operates the project in a peaking mode, meaning that daily, and even hourly, fluctuations in the lake level occur. The level of the lake varies seasonally to provide for flood storage; between April 1 and June30 annually, the lake is operated near the normal hill pool level ofSlO msl, and is drawn down to the winter pool level of 496 feet msl by December 1. This winter pool level is maintained until January 31, at which time the licensee refills the lake to reach 510 feet msl by April 1, and the cycle is repeated.9 According to the FEA prepared for the relicensing of the project, elevations between 488 and 510 feet msl constitute the storage available for power generation. Elevations between 510 and 540 feet msl provide storage for flood waters. (FERC 2009: page 13).

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—11— 4.2.1 Geology and Soils

Environmental Effects of Proposed Action

Affected Environment

Construction

Smith Lake is included within the dissected plateau section of the Southwestern Appalachians physiographic province. The terrain surrounding the lake is rugged and hilly, and was formed from a moderately to strongly dissected plateau. The incision of waterways through the plateau over time has created moderate and high gradient streams, many of which are contained within steep-sided, gorge-like valleys (EPA 2001). Common soil series occurring along the Pidgeon Roost Creek include the Enders, Hansciis, Liiiket, Muskiiigum, arid Pottsviiie serics. Soils in thcsc series are well drained, moderately deep to deep, and have slopes ranging from 1 percent (Linkers, Enders, and Hartsells series) to 45 percent and greater (Muskingum and Pottsville series). The majority of the shoreline of Pidgeon Roost Creek consists of Pottsville shaly silt loam and Muskingum stony fine sandy loam, whereas soils associated with the other series listed above are more common away from the shoreline (NRCS 2006). Both Pottsville shaly silt loam and Muskingum stony fine sandy loam typically exhibit slopes of 15 percent to 45 percent, and an average depth of bedrock of 8 to 20 inches. These soils are well drained; however, the amount of runoff increases dramatically as the slope of the soil surface increases (NRCS 2009). The shoreline along the location of the proposed dock facility consists of a flat bench that extends inland for a short distance to the bottom of a sandstone rock outcrop (Yokley 2009). Based on photographs submitted by the licensee (APC 2009b and APC 2010), the shoreline is covered with rock fragments and herbaceous vegetation interspersed with remnants of bulkheads from the previous docks, part of a concrete driveway, and a concrete boat ramp. The Residents assert that shoreline erosion and water turbidity has significantly increased in Pidgeon Roost Creek due to increases in boat traffic tied to recent openings of nearby marinas, especially during peak periods of boating activity. However, the licensee states it has not received any complaints of increased erosion, that marinas of similar size have operated in these same locations for years, and that there is no documented evidence of increased erosion in the area. The licensee states that the newly opened Waterford Condominiums and Ryan Creek Marina each had existing boat docking facilities operated under the names Castle Rock Marina and Big Bridge Marina, respectively. In effect, these facilities are not new, but have existed for many years. In addition, the permittee, who has a home at the mouth of Pidgeon Roost Creek, has attested that there has been no increase in erosion since the opening of the referenced marinas. Photographs provided by the licensee of the shoreline surrounding the location of the proposed facility do not appear to depict any areas of significant erosion. Because of these discrepancies, it is difficult to ascertain the extent of shoreline erosion in the

Installation of the proposed docks would result in some disturbance of surface, shoreline, and deep-water habitats in the proposed action area. These disturbances would occur as the docks were delivered and positioned by barge, attached to the shoreline via new suspended walkways and lines to bank pins, and anchored to the bottom with lines to cement anchors. The installation activity and associated noise and vibrations could result in indirect impacts to fishes by causing them to disperse and interrupting feeding or other behaviors. Benthic-oriented fishes, such as catfish, suckers, and possibly spawning bass and sunfish, could be impacted through the deployment and positioning of the dock anchors. As discussed under Water Quantity and Quality, above, the installation of the anchors would disturb bottom sediments, causing localized increases in turbidity which could disperse fish and interrupt their normal behaviors. Any impacts to spawning fish or their early life stages would be dependent on the timing of the proposed work, because these fish spawn in the spring and early summer. However, regardless of the time of year, the placement of the cement anchors would only disturb localized areas of the lake bottom, and, as indicated, lake bottom habitat is limited in most if not all of the immediate area by steep contours. For thesame reasons, the likelihood of direct effects to fishes and other organisms from deploying and positioning the anchors would appear to be very small. We note that any impacts to spawning fishes or their early life stages would be further reduced by following any seasonal limitations on in-water work recommended by the state or the licensee. Post-Construction Operation of the proposed dock facilities would expose fishes in the immediate area to increases in boat-related disturbances, possibly causing some fish to disperse or alter feeding or other behaviors during certain periods. However, the dock structures themselves would provide minor, long-term, beneficial cover and habitat for surface- oriented juvenile fishes and some adult fishes. Operation of the proposed facilities could also affect fisheries though changes in water quality caused by shoreline erosion, localized runoff, and spills of petroleum products. However, as discussed under Water Quantity and Quality, above, any effects to water quality from facility operation should be localized and no more than minor in intensity. Therefore, affects to fisheries through changes in water quality would not be expected.

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-21 - We conclude that construction and operation of the proposed facilities, to include the additional water quality protection measures discussed above, should not result in any significant adverse impacts to water quality. Environmental Effects of Staff Alternative Effects on water quality under the Staff Alternative would be similar to those described for the Proposed Action. However, because the Staff Alternative would authorize only two ten-slip boat docks rather than three, effects to water quality attributable to construction, post-construction runoff, and increased boat traffic would be reduced. Additionally, staff’s recommendation that the licensee file a landscaping plan to restore a buffer of riparian vegetation would slow and filter runoff from the new facility before it enters the lake, and would further reduce any effects to water quality. Finally, under this alternative, temporary, minor, adverse effects to water quality may occur due to the deconstruction and removal of concrete and the installation of simple walkways to the dock facilities.

4.2.3 Fisheries

Affected Environment

Due to its size and extensive dendritic shoreline. Smith Lake provides a substantial amount of near-shore aquatic habitat. Over 70 species of warmwater fishes inhabit Smith Lake, and the lake is well-known for its recreational sport fishing. Sport fishes inhabiting the lake include largemouth bass, spotted bass, shadow bass, red-eye, several species of sunfish, white and black crappie, and pickerel. Other fishes found in the lake include spotted and longnose gar, gizzard and threadfin shad, common carp, numerous species of shiners and dace, chub, suckers, and catfish. The DCNR has stocked the lake with Gulf Coast striped bass and Florida largemouth bass. The licensee stabilizes the water level in the reservoir for two weeks every spring to improve spawning conditions for resident bass (APC 2005). Near-shore fish habitat in the immediate area of the proposed dock facility is limited by the steep drop-off of the shoreline. Habitat in the immediate area is further limited by significant reservoir level fluctuations resulting from flood control and hydroelectric project operations. These conditions also limit emergent aquatic vegetation growth in the immediate area, further limiting near-shore fish habitat. area, or any acceleration due to recent increases in boat traffic. However, it is likely that some shoreline erosion may occur in the area of Pidgeon Roost Creek due to the combined effects of project-induced water level fluctuations, wave action, and the wake- producing boating.

Environmental Effect of Proposed Action

Construction

The licensee’s application indicates that minimal ground-disturbing activity would be necessary to complete the proposed project. Since installation of the proposed docks would involve minimal ground disturbance to the shoreline, it is not expected that significant erosion or sediment runoff would occur due to dock installation. Ground- disturbing activities within the project boundary would include demolition of the existing concrete block building and renovation of the concrete pad into a covered patio area, and expansion of the existing driveway area. As proposed, new concrete would be poured from the end of the existing driveway to the existing block building, and an area of new concrete 30 feet wide would be laid from the east edge of the existing block building to the point at which the most eastward proposed dock would be located, a distance of approximately 100 feet (Figure 2). Demolition of the existing block building is not likely to result in erosion or sediment runoff because the work would be completed by simply dismantling the existing structure. However, expansion of the existing driveway would require ground excavation prior to pouring the new concrete which could result in increased erosion around the excavated area. As noted by several commenters, ground disturbing activity related to establishment of the new concrete could result in erosion or sediment runoff to the lake, which the licensee indicates would be prevented by installation of vinyl silt fencing. We estimate that up to one-tenth of an acre of disturbance would be necessary to establish the expanded concrete areas, however, the majority of this area has been previously disturbed and experienced some amount of public use. The licensee’s application indicates that the proposed location for the docks, driveway and patio area consists of approximately 0.31 acre (13,503 square feet) of project land. Commission staff estimates the area of disturbance would be nearly one-third of this area. The proposed use of silt fencing would minimize the amount of sediment that may enter the lake from the disturbed area, the risk of which would persist until grading is complete and concrete is poured in those areas. As such, the proposed ground disturbing activities would have minor, temporary, adverse effects on geologic and soil resources at the project location. To further help minimize the effects to geology and soils, we recommend that the licensee shall include in the permit the following conditions: (1) the permittee’ s use of the lands covered by the permit shall not endanger health, create a nuisance, or otherwise be incompatible with overall project recreational

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- 13- use; (2) the permittee shall take all reasonable precautions to ensure that the construction, operation, and maintenance of the structures and facilities covered by the permit will occur in a manner that protects the scenic, recreational, and other environmental values of the projects; and (3) the permittee shall not unduly restrict public access to project waters. Post-construction Expansion of the paved area would increase the impervious surface area adjacent to the lake, resulting in increased runoff potential and possible shoreline erosion and sediment deposition in adjacent areas of the lake. In order to help minimize these impacts, we recommend the licensee be required to file a landscaping plan, for ...... __.,..-..,..1 ..,,.,I,I . .,,. Ii... l,...j,. fh sJIL1,IIIaaIOLI afJp, V as, LflU fl flsltS .flU.fl1.,fl U tU1&%.LflJUfl %•fl5S LU& effects of the proposed driveway and patio expansion. The plan should include details regarding the buffer width, species to be planted, planting schedule, and maintenance of the vegetated buffer. Even with a riparian buffer, as recommended above, we would still expect increased runoff relative to current conditions, which would have long-term, minor, adverse effects on geology and soil resources. The Residents assert that boat traffic in Pidgeon Roost Creek has increased dramatically since the recent opening of nearby marinas, resulting in significant erosion losses and damage to their properties. The licensee indicates that it is unaware of increased erosion or other problems as asserted by the Residents. The licensee explains that Ryan Creek Marina has operated in the area for years under a different name (Big Bridge Marina), and that the location of Waterford Condominiums, which has 58 boat slips, was previously occupied by the Castle Rock Marina, which had 92 boat slips. In looking at the photographs of the shoreline submitted by the licensee, we cannot identi1’ significant areas of erosion, as the photographs are absent of indicators such as leaning or falling trees and dead or dying vegetation that would result from mass-wasting, bank slumping, or erosion of the shoreline (Figures 3, 4, and 5). Operation of the project in a peaking mode (see Section 4.1, General Description of the Project and Development Area), and the seasonal changes in reservoir elevations for flood storage, generally prohibits the establishment of emergent vegetation within the elevations at which the lake is operated. As such, if the lake is drawn down from the hill pool elevation of 510 msl due to peaking operations, a band of bare soils and shoreline substrates is exposed, particularly where slopes above and below the shoreline/water interface are steep and do not have emergent aquatic vegetation growth or deeply rooted vegetation upland. Any wave action along the water/shoreline interface under such conditions could cause erosion and increased turbidity. However, the watercraft entering and exiting the proposed facilities would likely be travelling at a low rate of speed and not produce strong wakes. Because of this, we find that approving the Proposed Action would have only minor, long-term, adverse effects on soil resources along Pidgeon Roost Creek. quality at the immediate site. Any effects would quickly subside following completion of the installation activities. The Residents are concerned that ground-disturbing activity on the shore could affect water quality through sediment runoff into the lake. As noted in Section 4.2.1 (Geology and Soils), the proper use of silt fencing should greatly reduce any entry of sediment into lake during construction. Construction of the proposed boat dock facilities, with proper use of silt fencing, and compliance with applicable shoreline development guidelines and local and state erosion and sediment control measures, should ensure that the proposed work would cause no more than temporary, minor adverse effects to water quality in immediate action area in Pigeon Roost Creek. Post-Construction As indicated in Section 4.2.1 (Geology and Soils), following the completion of the paving involved in construction of the new facilities, some increase in the rate of surface runoff into the lake could be expected, particularly following significant precipitation events. No specific measures have been proposed to address this issue. Staff’s recommendation in Section 4.2.1 (Geology and Soils) that the licensee file a landscaping plan to establish a buffer of riparian vegetation would help slow and filter runoff before it enters the lake, and any runoff that could affect water quality would be minimized. It is unlikely that increases in shoreline erosion due to boating would be significant or measureable, and it is unlikely that any such increases in erosion would have more than very minor effects to local water quality. In addition, we note that increases in boating tied to the proposed dock facility would be unlikely to disturb the lakebed in the immediate area due to the depth of the water. Increases in boating activity in the area of the proposed docks could increase local water pollution that is caused by refueling spills and engine leakage of petroleum products. However, because the proposed facility would not have a commercial refueling operation and it would result in only a small increase in boating activity it is unlikely that any increase in such pollution would be measurable. In addition, it is reasonable to expect that refueling of some of the boats that would use the new facilities would occur at larger marinas located in other areas of the lake. The licensee’s application indicated that there were no plans for waste disposal at the facility proposed by the permittee. Following the Residents’ concern about this, the licensee responded that the permittee would be providing restroom facilities and trash receptacles for patrons, outside of the project boundary. With the addition of restroom facilities and trash receptacles, impacts to water quality from untreated waste should not be a significant concern.

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- 19- interpreted as the natural condition of the receiving waters, without the influence of man-made or man-induced causes. Turbidity caused by natural runoff will be included in establishin back ound levels. In general, water quality in Smith Lake has been shown to be influenced by point and non-point discharge of pollutants into the watershed, resulting in its classification as a mesotrophic’° body of water. The primary non-point source of pollutants has been identified as runoff associated with unreclaimed mining sites. Industrial and municipal discharges, concentrated animal feed operations, and construction have been identified as point sources (FERC 2009). Currently, the Ryan Creek arm of Smith Lake has been placed on Alabama’s 2010 303(d) list of impaired waters, pending approval of the U.S. Environmental Protection Agency, for atmospheric deposition of metals (mercury) based on fish consumption advisory (DEM 20 lob). The shoreline in the area of the proposed facilities, during periods of seasonal lower lake levels, consists of boulders, rock rubble and sand. When the lake is brought to higher elevations, the shoreline is composed of rock, sand, clay, and herbaceous vegetation, with areas of planted grass. The lake bed drops off quickly where the proposed facilities would be located. At the north end of the shoreline, there are depths of over 15 feet approximately 12 feet from shore. (Yokley 2009; APC 2009b; APC 2010). As discussed in Section 4.2.1 (Geology and Soils), the current rate of shoreline erosion in the Pigeon Roost Creek area is disputed. However, for the purpose of this analysis, we are assuming some shoreline erosion does occur in the area, as would be expected at large reservoirs where water levels regularly fluctuate because of flood control and peaking operation, and wave action from wind can impact exposed shoreline during reduced water levels. Additionally, wakes from boat traffic originating in Pigeon Roost Creek and at nearby large marinas would cause minimal increases to the rate of erosion, dependent in part on the speed of the boats. flyjrLfleflt4l Efjects of Proposed Action

Construction

Installation of the proposed dock anchors would result in some direct disturbance of the lake bottom, likely causing some resuspension of lake bottom sediments. However, due to the small areas that would be disturbed, it is very unlikely that installation of the anchors would result in any measureable adverse effects to water

Envirmrn0tI Effects of Staff Aternative Under the Staff Alternative, the effects on geology and soil resources would be similar to those described for the Proposed Action, with two exceptions. First, because the Staff Alternative would only authorize the installation of two ten-slip boat docks, the effects of increased boat traffic on geology and soils would be reduced as ten fewer watercraft would potentially use this area of Pidgeon Roost Creek for recreation. The reduction in number of watercraft accommodated by the marina would incrementally reduce the effects of boat wakes on shoreline erosion, but minor, adverse effects would still occur. Second, because the Staff Alternative would require replacement of the existing concrete and impervious areas with native vegetation within the project boundary, minor, long-term, beneficial effects would occur due to restoring the project boundary to a pervious, natural surface. Under this alternative, temporary, minor, adverse effects to geology and soils would occur due to the deconstruction and removal of concrete and the installation of simple walkways to the dock facilities. Even though these temporary adverse effects would mostly be outweighed by the benefits of a restored shoreline buffer, the effects could be mitigated by a sediment and erosion control plan. Thus, we recommend that, if this alternative is chosen, the licensee be required to file a sediment and erosion control plan, for Commission approval, prior to commencement of any ground disturbance.

‘° A mesotrophic classification indicates moderate levels of nutrients and moderate production of aquatic plant and animal life.

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Affected Environment Smith Lake has a drainage area of 944 square miles. The lake extends 35 miles upstream from Smith Dam, and has a normal surface area of 2 1,200 acres at a normal pooi elevation of 510 feet msl. Maximum pool elevation is 522 feet msl. The lake has 500 miles of highly dendritic shoreline, with a maximum width of less than 15 miles. As indicated in Section 3.1 (General Description of the Project and Development Area), water levels at Smith Lake vary seasonally. Between April 1 and June 30, the lake is normally near its normal full pool elevation of 510 msl. it is drawn down to 4% feet msl by December 1, where it remains until January 31, when it is refilled to 510 feet msl by April 1. In cooperation with the DCNR, the lake is maintained at a constant or slightly increasing elevation for a 14-day period each spring, to enhance black bass spawning. The Ryan Creek arm of Smith Lake, of which Pigeon Roost Creek is an embayment, is classified by the DEM as suitable for swimming and other whole-body contact sports, and for fish and wildlife. These waters are considered Category 1 because they meet the requirements of these classifications (DEM 201 Oa), the criteria of which are given in Table 1, below. Table 1. Applicable State Water Quality Criteria (Source: Alabama DEM 2011). p1-I

Shall not deviate more than one unit from the normal or natural pH, nor be_less_than_6.0_nor_greater than_8,5

Temperature

Maximum temperature in streams, lakes, and reservoirs shall not exceed 90° F.

Dissolved Oxygen

For diversified warmwater biota, including game fish, daily DO concentrations shall not be less than 5 milligrams per liter (5 mg/I) at all times; except under extreme conditions due to natural causes, it may range between mg/I and 4 mg/I provided that water quality is favorable in all other parameters. The bacterial quality of water is acceptable when a sanitary survey by the controlling health authorities reveals no source of dangerous pollution and when the geometric mean E. Coil organism density does not exceed 126 colonies per 100 milliliters (ml), nor exceed a maximum of 235 colonies per 100 ml in any sample in non-coastal waters.

Bacteria

Turbidity

There shall be no turbidity of other than natural origin that will cause significant visible with the natural appearance of waters or interfere with any beneficial uses which they serve. In no case shall turbidity exceed 50 Nephelometric units above background. ground shall be

Figure 4. Photograph of shoreline across from the proposed Cushman’s Marina. Source: APC 2010.

Figure 5. Photograph of shoreline across from the proposed Cushman’s APC 2010.

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