20030180 Ver 7_More Info Received_20100720 (3)

Water Quality Certifications for Storage Proiects:
Nantahala (FERC P-2692; WQC #3829)
East Fork (FERC P-2698; WQC #3831)
West Fork (FERC P-2686; WQC #3830)
• The legal name for the project licensee is Duke Energy Carolinas, LLC. All references to
the project licensee and the holder of the applicable WQC should be Duke Energy 04"
Carolinas, LLC rather than Duke Energy Carolinas, Inc. Please confirm NCDWQ's
agreement.
Condition 3 for the Nantahala Proiect 03829):
• Condition 3 contains a reference to the West Fork Project that should be stated as the
Nantahala Project. Please confirm NCDWQ's agreement.
Conditions 8 and 9 for the Nantahala (#3829), East Fork (#3831) and West Fork (#3830,)
Proiects•
• These Conditions should be appropriately numbered Condition 6 and Condition 7,
respectively for all three Projects. Please confirm NCDWQ's agreement.
Condition 8 for the Nantahala Proiect (#3829):
We understand that you are incorporating some of the Sections and Attachments from the
Nantahala Cooperative Stakeholder Team (NCST) Settlement Agreement as conditions in the 1,
WQC for the Nantahala Project. 01?-
• Condition 8 should refer to the Nantahala Cooperative Stakeholder Team (NCST) rather
than the Tuckasegee Cooperative Stakeholder Team (TCST). Please confirm NCDWQ's
agreement.
Some of the section numbers and titles in the WQC did not match section numbers and titles in
the NCST Settlement Agreement. Also, a couple of the sections listed (i.e., shoreline
management and recreation flows) have not been topics covered in other WQCs (e.g., Catawba- 1-2
Wateree) and in Duke's opinion are not topics that are pertinent to this WQC. Finally, per
Section 14.7 of the NCST Settlement Agreement, Duke is contractually prohibited from
supporting the inclusion of Section 5.0 (Recreation Flow Agreements) and Section 7.0 (ShQr?eline
Management Agreements) in the Nantahala Project WQC. Considering these points, Duke's
understanding of Condition 8 is that you are only incorporating the following Sections and
Attachments of the NCST Settlement Agreement into the Nantahala Project WQC:
• Section 1.0 Reservoir Level Agreements
• Section 4.0 Minimum Flow Agreements for Bypassed Reaches
• Section 9.0 Sediment Management Agreements
• Section 13.0 Agreements on Compliance Monitoring and Reporting Requirements
• Attachment B - Low Inflow Protocol (LIP) for the Nantahala Project
• Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the
Nantahala Project
X0.5
rl V?
Duke requests your concurrence that Condition 8 of the Nantahala Project WQC
incorporates only the above-listed Sections and Attachments of the NCST Settlement
Agreement.
Condition 8 for the East Fork Proiect 03831) and West Fork Project 03830):
Duke understands that you are incorporating some of the Sections and Attachments from the
Tuckasegee Cooperative Stakeholder Team (TCST) Settlement Agreement as conditions in the
WQCs for these Projects. Some of the section numbers and titles in the WQC did not match
section numbers and titles in the TCST Settlement Agreement. Also, the Low Inflow Protocol
and Hydro Project Maintenance & Emergency Protocol appear to have been inadvertently left
out of the WQCs for these two Projects. Finally, since the TCST Settlement Agreement Sections
and Attachments have portions that apply to the East Fork Project and portions that apply to the
West Fork Project but not necessarily to both, it is important to note that distinction. Considering ,roc
these points, Duke's understanding of Condition 8 in the East Fork Project WQC and the West
Fork Project WQC is that you are only incorporating the following Sections and Attachments of
the TCST Settlement Agreement into the Project's WQC and only to the extent that the words in
the referenced Sections and Attachments apply to the particular Project:
• Section 1.0 Reservoir Level Agreements
• Section 4.0 Minimum Flow Agreements in the Tuckasegee River Main Stem and
Bypassed Stream Reaches
• Section 9.0 Sediment Management Agreements
• Section 14.0 Agreements on Compliance Monitoring and Reporting Requirements
• Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects
• Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the
West Fork and East Fork Projects
Duke requests your concurrence that Condition 8 of the West Fork and East Fork Project
WQCs incorporates only the above-listed Sections and Attachments of the TCST
Settlement Agreement and only to the extent that the words in the referenced Sections and
Attachments apply to the particular Project.
Condition 9 of WOCs for the Nantahala Proiect 03829), East Fork Proiect 03831) and the
West Fork Proiect 03830): Ow
• Attached is documentation that Duke has paid the cost of public notice advertisements in
local newspapers. Duke requests your concurrence that the requirements of
Condition 9 have been met.
ARA.NCR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins
Governor Director
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, INC 28201-1006
Re:
Nantahala Hydroelectric Project
Macon and Clay Counties
DWQ #2003-1110, Version 6.0; Federal Energy Regulatory
Commission Project Number 2692
APPROVAL of 401 Water Quality Certification
Dear Mr. Jester:
Attached hereto is a copy of Certification No. 3829 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.
Sincerely,
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, INC 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
Dee Freeman
Secretary
Filename: Duke Energy Nantahala 401 version 1.4
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/ncwetlands/
NorthCarolina
.AJaturallr?
An Equal Opportunity 1 Affirmative Action Employer
Duke Energy Carolinas, LLC
Page 2 of 4
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,
Inc. to continue the operation of hydropower dams at the Nantahala Hydroelectric Project in
Macon and Clay Counties, North Carolina pursuant to an application filed on the 7th day of
December 2009 which included the Nantahala Cooperative Stakeholder Team (NCST)
Settlement Agreement dated October 23, 2003 and executed on October 29, 2003.
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 West Fork 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
Duke Energy Carolinas, LLC
Page 3 of 4
June 9, 2010
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 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.
Continuinq 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 Nantahala 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 Nantahala 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 2H.0503 and provide opportunity for public hearing in accordance with 15A
NCAC 2H.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
8. Comprehensive Settlement Agreement - The Comprehensive Settlement Agreement
dated October 23, 2003 is hereby incorporated into this Certification by reference. In
particular, the following sections, including any attachments identified within those
sections, of the TCST Settlement Agreement dated October 23, 2003 are hereby
incorporated into this Certification by reference: Section 1.0 (Reservoir Level
Agreements); Section 3.0 (Minimum Flow Agreements for Bypassed Reaches); Section
4.0 Scheduled High Flow Releases to Nantahala Bypassed Reach; Section 6.0
Shoreline Management; Section 7.0 (Sediment Management Agreements); Section 9.0
Compliance Monitoring and Reporting Requirements as well as the Low Inflow Protocol
Hydro Project Maintenance and Emergency Protocol (HPMEP) and Minimum Flow For
Bypassed Reaches for the Nantahala Project. If Duke Energy Carolinas believes that
Duke Energy Carolinas, LLC
Page 4 of 4
June 9, 2010
any items of that Comprehensive Settlement Agreement are not pertinent to water
quality, then they shall so notify DWQ in writing for DWQ's written concurrence.
9. 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
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 9th day of June 2010
DIVISION OF WATER QUALITY
Coleen H. Sullins
CS/jrd
aw? A JA masq?_?
NCD NR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins
Governor Director
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, INC 28201-1006
Re: West Fork Hydroelectric Project
Jackson County
DWQ #2003-1113, Version 6.0; Federal Energy Regulatory
Commission Project Number 2686
APPROVAL of 401 Water Quality Certification
Dear Mr. Jester:
Dee Freeman
Secretary
Attached hereto is a copy of Certification No. 3830 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.
Sincerely,
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 West Fork 401 version 1.2
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/ncwetlands/
NorthCarolina
?aturallr?
An Equal Opportunity 1 Affirmative Action Employer
Duke Energy Carolinas, LLC ?.
Page 2 of 4
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 West Fork Hydroelectric Project in
Jackson County, North Carolina, pursuant to an application filed on the 7th day of December of
2009, which included the Tuckasegee Cooperative Stakeholder Team (TCST) Settlement
Agreement dated October 23, 2003 and executed on October 29, 2003.
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 West Fork 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

Duke Energy Carolinas, LLC
Page 3 of 4
June 9, 2010
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 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 West Fork 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 West Fork Project 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
2H.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,
LLC 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
8. Comprehensive Settlement Agreement - The Comprehensive Settlement Agreement
dated October 23, 2003 is hereby incorporated into this Certification by reference. In
particular, the following sections, including any attachments identified within those
sections, of the TCST Settlement Agreement dated October 23, 2003 are hereby
incorporated into this Certification by reference: Section 1.0 (Reservoir Level
Agreements); Section 4.0 (Minimum Flow Agreements for Bypassed Reaches); Section
9.0 (Sediment Management Agreements) and Section 14 (Agreements on Compliance
Monitoring and Reporting Requirements). If Duke Energy Carolinas, LLC believes that
any items of that Agreement are not pertinent to water quality, then they shall so notify
DWQ in writing for DWQ's written concurrence.
Duke Energy Carolinas, LLC :..
Page 4 of 4
June 9, 2010
9. 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
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 9th day of June 2010
DIVISION OF WATER QUALITY
Coleen H. Sullins
CS/jrd
• E "A
NCDENR MCNorth Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins
Governor Director
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, INC 28201-1006
Re: East Fork Hydroelectric Project
Jackson County
DWQ #2003-1112, Version 6.0; Federal Energy Regulatory
Commission Project Number 2698
APPROVAL of 401 Water Quality Certification
Dear Mr. Jester:
Dee Freeman
Secretary
Attached hereto is a copy of Certification No. 3831 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.
Sincerely,
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 East Fork 401 version 1.2
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.uslncwetlands/
NorthCarohna
Naturally
An Equal Opportunity \ Affirmative Action Employer
Duke Energy Carolinas, LLC•
Page 2 of 4
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 East Fork Hydroelectric Project in
Jackson County, North Carolina, pursuant to an application filed on the 7th day of December of
2009, which included the Tuckasegee Cooperative Stakeholder Team (TCST) Settlement
Agreement dated October 23, 2003 and executed on October 29, 2003.
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 East Fork 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
Duke Energy Carolinas, LLC
Page 3 of 4
June 9, 2010
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 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.
Continuinq 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 East Fork 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 East Fork Project 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,
LLC 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
8. Comprehensive Settlement Agreement - The Comprehensive Settlement Agreement
dated October 23, 2003 is hereby incorporated into this Certification by reference. In
particular, the following sections, including any attachments identified within those
sections, of the TCST Settlement Agreement dated October 23, 2003 are hereby
incorporated into this Certification by reference: Section 1.0 (Reservoir Level
Agreements); Section 4.0 (Minimum Flow Agreements for Bypassed Reaches); Section
9.0 (Sediment Management Agreements) and Section 14 (Agreements on Compliance
Monitoring and Reporting Requirements). If Duke Energy Carolinas, LLC believes that
any items of that Agreement are not pertinent to water quality, then they shall so notify
DWQ in writing for DWQ's written concurrence.
Duke Energy Carolinas, LLC*
Page 4 of 4
June 9, 2010
9. 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
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 9th day of June 2010
DIVISION OF WATER QUALITY
Coleen H. Sullins
CS/jrd