20030181 Ver 7_Approval Letter_20100609

PWA
NCUM
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins Dee Freeman
Governor Director Secretary
June 9, 2010
Steven D. Jester, Vice President
Hydro Strategy, Licensing and Lake Services
Duke Energy Carolinas, LLC
526 South Church Street
P.O. Box 1006
Charlotte, NC 28201-1006
Re: Mission Hydroelectric Project
Clay and Cherokee Counties
DWQ #2003-0181, Version 7.0; Federal Energy Regulatory
Commission Project Number 2619
APPROVAL of 401 Water Quality Certification
Dear Mr. Jester:
Attached hereto is a copy of Certification No. 3826 issued to Duke Energy Carolinas, LLC.
dated June 9, 2010. In addition, you should get any other applicable federal, state or local
permits before you go ahead with your project including (but not limited to) Solid Waste,
Sediment and Erosion Control, Stormwater, Dam Safety, Non-discharge and Water Supply
Watershed regulations.
If we can be of further assistance, do not hesitate to contact us.
Sincer ly,
Coleen H. Sullins
CS/jrd
Attachments: Certificate of Completion
cc: Kevin Barnett, DWQ, Asheville Regional Office
Roger Edwards, DWQ Asheville Regional Office
File Copy
Jim Mead, NC Division of Water Resources
Ms. Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First
Street, N.E., Washington, DC 20426
Steve Johnson, Duke Energy Carolinas - Hydro Strategy and Licensing
Filename: Duke Energy Nantahala 401 version 2.2
401 OversighttExpress Review. Permitting Unit
1650 Mail Service Center, Raleigh, North Carolina 27699-1650
Location: 2321 Crabtree Blvd., Raleigh, North Carolina 27604
Phone: [phone] FAX: [phone]
Internet: htip:llh2o.enr.state.nc.us/ncwetlands/
NofffiCarohna
Naturally
An Equal Opportunity 1 Affirmative Action Employer
Duke Energy Carolinas, LLC
Page 2 of 5
June 9, 2010
NORTH CAROLINA 401 WATER QUALITY CERTIFICATION
THIS CERTIFICATION is issued in conformity with the requirements of Section 401 Public
Laws 92-500 and 95-217 of the United States and subject to the North Carolina Division of
Water Quality (DWQ) Regulations in 15 NCAC 2H, Section .0500 to Duke Energy Carolinas,
LLC. to continue the operation of hydropower dams at the Mission Hydroelectric Project in Clay
and Cherokee Counties, North Carolina, pursuant to an application filed on the 8th day of June
of 2009, and supplemental information dated May 26, 2010 (Addendum No. 1 and No. 2) and
May 27, 2010 (Addendum No. 3).
The application and supporting documentation provide adequate assurance that the proposed
work will not result in a violation of applicable Water Quality Standards and discharge
guidelines. Therefore, the State of North Carolina certifies that this activity will not violate the
applicable portions of Sections 301, 302, 303, 306, 307 of PL 92-500 and PL 95-217 if
conducted in accordance with the application, the supporting documentation, and conditions
hereinafter set forth.
This approval is only valid for the purpose and design submitted in the application materials and
as described in the Public Notice. If the project is changed, a new application for a new
Certification is required. If the property is sold, the new owner must be given a copy of the
Certification and approval letter and is thereby responsible for complying with all conditions of
this Certification. Any new owner must notify the Division and request the Certification be
issued in their name. Should wetland or stream fill be requested in the future, additional
compensatory mitigation may be required as described in 15A NCAC 2H.0506 (h) (6) and (7).
If any plan revisions from the approved site plan result in a change in stream or wetland impact
or an increase in impervious surfaces, the DWQ shall be notified in writing and a new
application for 401 Certification may be required. For this approval to be valid, compliance with
the conditions listed below is required.
Conditions of Certification:
1. No waste, spoil, solids, or fill of any kind shall occur in wetlands, waters, or riparian areas
beyond the footprint of the impacts depicted in the Certification. All construction activities,
including the design, installation, operation, and maintenance of sediment and erosion control
Best Management Practices, shall be performed so that no violations of state water quality
standards, statutes, or rules occur;
2. Sediment and erosion control measures shall not be placed in wetlands or waters to the
maximum extent practicable. If placement of sediment and erosion control devices in
wetlands and waters is unavoidable, they shall be removed and the natural grade restored
within six months of the date that the Division of Land Resources has released the project;
3. The Applicant shall identify and report in writing existing and proposed consumptive uses of
Mission Project waters to NCDWQ and the N.C. Division of Water Resources (NCDWR).
The Applicant shall report the existing or projected (as appropriate) average consumptive
withdrawal and maximum approved withdrawal capacity for each water intake in excess of
one million gallons per day that is located or proposed for location within the FERC Project
boundary. The Applicant shall report existing consumptive uses to NCDWQ and NCDWR
within 60 days following the acceptance of the License and shall report proposed new or
expanded consumptive uses to NCDWQ and NCDWR within 30 days following receipt of a
Duke Energy Carolinas, LLC
Page 3 of 5
June 9, 2010
written request for approval of a proposed new or expanded withdrawal and before
submitting any approval requests to FERC.
4. This Certification does not grant or affirm any property right, license or privilege in any
waters or any right of use in any waters. This Certification does not authorize any person to
interfere with the riparian rights, littoral rights or water use rights of any other person, and
this Certification does not create any prescriptive right or any right of priority regarding any
usage of water. No person shall interpose this Certification as a defense in any action
respecting the determination of riparian or littoral rights or other water use rights. No
consumptive user is deemed by virtue of this Certification to possess any prescriptive or
other right of priority with respect to any other consumptive user regardless of the quantity
of the withdrawal or the date on which the withdrawal was initiated or expanded. This
Certification issues on the express understanding of DENR that, pursuant to Federal Power
Act section 27, 16 U.S.C. § 821, the License does not establish or determine a proprietary
right to any use of water. It establishes the nature of the use to which a proprietary right
may be put under the Federal Power Act.
Continuing Compliance:
5. Duke Energy Carolinas, LLC. shall conduct its activities in a manner consistent with State
water quality standards (including any requirements resulting from compliance with section
303(d) of the Clean Water Act) and any other appropriate requirements of State law and
federal law. If the Division determines that as a result of the discharge or operation of the
Mission Project such standards or laws are not being met (including the failure to sustain a
designated or achieved use) or that State or federal law is being violated, or that further
conditions are necessary to assure compliance, the Division may reevaluate and modify
this Certification to include conditions relative to the discharge or operation of the Mission
Project appropriate to assure compliance with such standards and requirements in
accordance with 15A NCAC 2H.0507(d). Before modifying the Certification, the Division
shall notify Duke Energy Carolinas, LLC. and the Federal Energy Regulatory Commission,
provide public notice in accordance with 15A NCAC 21-1.0503 and provide opportunity for
public hearing in accordance with 15A NCAC 21-1.0504. Any new or revised conditions shall
be provided to Duke Energy Carolinas, Inc. in writing, shall be provided to the Federal
Energy Regulatory Commission for reference in any Permit or License issued by that
agency and shall also become conditions of the FERC License for the project.
Other Conditions
6. Addenda No. 1, 2 and 3 sent from Duke Energy Carolinas to Mr. John Dorney from Mr.
Steven Jester on May 26, May 26 and May 27, 2010, respectively are hereby incorporated
into this Certification. Any modifications to the provisions in these Addenda require
additional written approval from the NC Division of Water Quality. In particular, additional
written approval is required for a modified version of the Long and Short Term Sediment
Management Plan after additional consultation with all interested parties including DWQ,
US Fish and Wildlife Service, NC Wildlife Resources Commission and NC Division of Water
Resources.
7. The Applicant will consult with the North Carolina Division of Water Quality (NCDWQ), the
North Carolina Division of Water Resources (NCDWR), the North Carolina Wildlife
Duke Energy Carolinas, LLC
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June 9, 2010
Resources Commission (NCWRC) and the United States Fish and Wildlife Service to
develop a Lake Level and Flow Management Plan and Long and Short-Term Sediment
Management Plans for the Mission Project. These plans will also include provisions for
communications and consultation with the above resource agencies during emergencies
and routine maintenance activities. In particular, the Sediment Management Plan
(Addendum 3) shall provide assurance to the Division of Water Quality that all existing
aquatic life uses of downstream waters including mussel habitat will be protected. These
plans will be filed with the FERC and the NCDWQ for written approval within 60 days
following the issuance of the License for the Mission Project. The Division shall be notified
in writing within 24 hours of any deviations to the discharge and lake level fluctuations that
vary from these approved Plans. Decreased flow shall be restored as soon as practical to
the written satisfactions of the DWQ.
8. The Nantahala Area Run of River Projects Maintenance and Emergency Protocol (MEP)
submitted as an Appendix to the Lake Level and Flow Management Plan on May 26, 2010
is hereby incorporated as a condition of this Certification. Any changes to this Protocol
require written concurrence of the Division of Water Quality.
9. Shoreline Management - Duke Energy Carolinas, LLC shall develop a shoreline
management plan for written DWQ approval. Such Plan shall prohibit private access,
except normal foot access, to the lake across Project lands except at any designated public
access areas. By this measure, shoreline management shall focus on natural resource
protection to preserve the largely undisturbed nature of the shoreline. Additional written
approval from DWQ is required for changes to the shoreline management plan.
io. This Certification shall only be effect if and when Duke Energy Carolinas, LLC pays the
costs of the Public Notices for this project. DWQ shall be copied on the letter and check
which pays for the cost of these Notices
Also, this approval to proceed with your proposed impacts or to conduct impacts to
waters as depicted in your application shall expire upon expiration of the License that
the FERC will issue subsequent to this Certification.
If you wish to contest any statement in the attached Certification you must file a petition for an
administrative hearing. You may obtain the petition form from the office of Administrative
hearings. You must file the petition with the office of Administrative Hearings within thirty (30)
days of receipt of this notice. A petition is considered filed when it is received in the office of
Administrative Hearings during normal office hours. The Office of Administrative Hearings
accepts filings Monday through Friday between the hours of 8:00am and 5:00pm, except for
official state holidays. The original and one (1) copy of the petition must be filed with the Office
of Administrative Hearings.
The petition may be faxed-provided the original and one copy of the document is received by
the Office of Administrative Hearings within five (5) business days following the faxed
transmission.
The mailing address for the Office of Administrative Hearings is:
Office of Administrative Hearings
6714 Mail Service Center
Raleigh, NC 27699-6714
Telephone: [phone], Facsimile: (919)-733-3478
Duke Energy Carolinas, LLC
Page 5 of 5
June 9, 2010
A copy of the petition must also be served on DENR as follows:
Ms. Mary Penny Thompson, General Counsel
Department of Environment and Natural Resources
1601 Mail Service Center
Raleigh, NC 27699-1601
CS/jrd
This the 9th day of June 2010
DI 10 OF R QUALITY
Coleen H. Sullins