20031112 Ver 5_General Correspondence_20090128

L x"
NCDENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins
Governor Director
January 28, 2009
Mr. Steven Johnson
Duke Energy Carolinas - Hydro Licensing
526 S. Church Street
P.O. Box 1006
Charlotte, NC 28201-1006
Dear Mr. Johnson:
RE: 401 Water Quality Certification applications for West Fork (DWQ # 2003-1113, version
5), East Fork (DWQ # 2003-1112, version 5) and Nantahala (DWQ #2003-1110, version
5), Jackson, Clay and Macon Counties.
Dee Freeman
- Secretary
The purpose of this letter is to confirm whether Duke Energy would like to keep the above mentioned
projects on administrative hold in light of pending litigation in the Office of Administrative Hearing concerning the 401
Water Quality Certification for the Dillsboro dam removal project. If you would like the Division to process these
applications, please advise me in writing since I will need to prepare the Public Notices for these projects. If we do not
hear from you in writing, we will assume that you want these projects to remain on administrative hold.
It should be noted that the TCST and NCST Settlement Agreements negotiated in the FERC relicensing
proceedings for Duke's facilities in this basin provide that the removal of the Dillsboro Dam will serve as mitigation for
reduced flows at the referenced facilities. As you know, this agency's 2007 issuance of a 401 certification concerning the
method for removal of the Dillsboro Dam and Powerhouse remains the subject of a contested case hearing in the Office of
Administrative Hearings. If that litigation should be resolved adverse to the Division and Duke and preclude removal of
the dam, the Settlement Agreements would require identification of alternative mitigation projects. Accordingly, if the
pending applications for 401 certifications are to be reviewed at this time, the agency will require you to specify in writing
for the agency's consideration what specific alternatives you would propose in order to address Section 6.12 of the TCST
and NCST Settlement Agreements. In addition, any certifications issued for these projects would be conditioned upon
implementation of acceptable, alternative forms of mitigation in the event removal of the Dillsboro dam were not possible.
Thank you for your consideration of this matter. If you need to discuss any issues, please give me a call at 919-
733-9646.
Sincerely yours,
rney
Cc: File copy
Craig Bromby, Esq.
Garry Rice, Esq.
Sueanna Sumpter, Western Attorney General's office
Marc Bernstein, NC Attorney General's office
DWQ Asheville Regional Office
Jim Mead, DWR
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/
North Carolina
Naturally
An Equal Opportunity \ Affirmative Action Employer