20030181 Ver 7_Approval Letter_20100730

A,
NCUM
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins
Governor Director
July 30, 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 - REVISED
Dear Mr. Jester:
Dee Freeman
Secretary
Attached hereto is a copy of Certification No. 3826 issued to Duke Energy Carolinas, LLC dated
July 30, 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.
Sincerely,
v
leen H. Sullins
CS/jrd
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 Mission 401 version 2.5
401 Oversight/Express 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: http://h2o.enr.state.nc.us/ncwetiands/
North Carolina
?aturallr?
An Equal Opportunity 1 Affirmative Action Employer

Duke Energy Carolinas, LLC
Page 2 of 5
July 30, 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 or the Division) 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 (Addenda No. 1 and No. 2) and May 27, 2010 (Addendum No. 3). It is also noted that
Addendum No. 2 was superseded and replaced by 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 North Carolina Division of Land Resources has
released the project.
3. Duke Energy Carolinas, LLC shall identify and report in writing existing and proposed
consumptive uses of Mission Project waters to DWQ and the North Carolina Division of
Water Resources (DWR). Duke Energy Carolinas, LLC 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 Federal Energy Regulatory Commission (FERC) Project
boundary. Duke Energy Carolinas, LLC shall report existing consumptive uses to DWQ and
Duke Energy Carolinas, LLC
Page 3 of 5
July 30, 2010
DWR within 60 days following the acceptance of the License and shall report proposed new
or expanded consumptive uses to DWQ and DWR within 30 days following receipt of a
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 the North Carolina Department of
Environment and Natural Resources (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 FERC, provide public notice in accordance
with i5A NCAG 2h.0303 and provi6tc uppoituniiy fui puuiic nearing in auculdance with '3A
NCAC 21-1.0504. Any new or revised conditions shall be provided to Duke Energy
Carolinas, LLC in writing, shall be provided to the FERC 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 and No. 3 sent from Duke Energy Carolinas, LLC to Mr. John Dorney from
Mr. Steven Jester on 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 DWQ. In particular, additional written approval may be required from
DWQ for a modified version of the Sediment Removal Pilot Study after additional
consultation with all interested parties including Duke Energy Carolinas, LLC, DWQ, DWR,
US Fish and Wildlife Service (USFWS), and the North Carolina Wildlife Resources
Commission (WRC).
Duke Energy Carolinas, LLC
Page 4 of 5
July 30, 2010
7. Duke Energy Carolinas, LLC will consult with DWQ, DWR, WRC, and the USFWS to
develop the Long-Term Sediment Management Plan for the Mission Project. In particular,
the Long-Term Sediment Management Plan (as described in Addendum No. 3) shall
provide assurance to the DWQ that all existing aquatic life uses of downstream waters
including mussel habitat will be protected from negative impacts due to Mission Project
operations. The Long-Term Sediment Management Plan will be filed with the FERC and
the DWQ for written approval within 60 days following the later of (a) completion of the
Sediment Removal Pilot Study or (b) issuance of the License for the Mission Project. The
DWQ shall be notified in writing as specified in Addendum No. 1 of any deviations to the
discharge and lake level fluctuations that vary from these approved Plans. Any such
discharge and lake level deviations shall be corrected as soon as practical to the written
satisfaction 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. The MEP has provisions for
communications and consultation with the resource agencies listed above during
emergencies and routine maintenance activities. Any changes to this Protocol require
written concurrence from DWQ.
9. Shoreline Management - Duke Energy Carolinas, LLC shall develop a shoreline
management plan for written DWQ approval. Such Plan shall prohibit private access
facility construction on Project lands.. 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. Structures and impacts that are pre-existing (as of the date of this Certification) are
grandfathered and allowed to remain as long as their footprint is not expanded.
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 sixty (60)
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
Duke Energy Carolinas, LLC
Page 5 of 5
July 30, 2010
Telephone: [phone], Facsimile: (919)-733-3478
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
This the 30th day ly 2010
DI ION OF A QUALITY
Coleen H. Sullins
CS/jrd