20080915 Ver 1_SCDHEC Settlement Agreement 07112014_20140718

THIS AGREEMENT is made and entered into this 14 by and among
Anocdcun Rivers, South Carolina Coastal Conservation Leag ("CCL/) (collectively,
"Conservation Organizations"), Duke Energy Carolinas, LLC ("Duke Energy"), and the South
Carolina Department of Bcubb and Environmental Control ("8CDBEC") each referred to
singularly as ^^Party" and collectively as the "Pat-ties" herein. By this Agreement, the
undersigned Parties mutually agree to compromise, settle, and dismiss with prejudice the
pending litigation and dispute described below, upon fb|fi||nnentof all terms and conditions as
set forth below.
WHEREAS, Duke Energy operates the Catawba-Wutenee Hydroelectric Project (de
"Project"), "/biub is u series of dams regulated by the Federal Energy Regulatory Commission
(^^PERC`) and io subject torolioeouing;
WHEREAS, Duke Energy applied to FBRC for aNew License for the Project on August
29,200b;
WHEREAS, Duke Energy applied to 5C[]BEC for a vvutxz quality certification under
Section 401 of the Clean Water Act y^40} o�rii�os�ion")fbrtbePr 'cctonJun�5 2008'
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WHEREAS, SCDBBC issued o "Notice of Department Decision — Water ()uo|hv
Certification" on May 15, 2009, and then, at the request ofthe Conservation Organizations, the
South Carolina Board of Health and Environmental Control denied the 401 certification in a
written order issued August 0,2009;
8/BBRUBA5. Duke Energy appealed the denial of the 401 certification to the
Administrative Law Court ('^ALC") on September 4, 2009 in u contested case entitled, Duke
Energy Carolinas, LLC, Petitioner v. South Carolina Department of Health and Environmental
Control, Respondent, and American Rivers and South Carolina Coastal Conservation League,
Interveners, Docket No. 09-ALJ-07-0377-CC (the "Contested Cuee");
VKB2RBA5 the Contested Case was decided in favor of Duke Energy and was reversed
by the South Carolina Court of Appeals (Appellate Case No. 2010-166486) in an opinion
originally filed on December }2,2012, then withdrawn, substituted, and cefi|cdon May |,20l3;
\9BERE/\5, Duke Energy sought u Writ ofCertiorari in a Petition tothe South Carolina
Supreme Court on June 28, 2013 (Case No. 09-A[J-07-0377-CC), and that petition remains
pending;
WHEREAS, on July 0, 2013, the National Marine Fisheries Service (^NMFS") issued u
final Biological Opinion evaluating the operation of the Project as proposed in Duke Energy's
application to the FBPLC for aNew License;
\9f{EJlE/\5. Duke Energy filed a petition on August 11, 2009, requesting PEllC to
declare that the State of South Carolina has waived 401 certification for the ,elioenoing of the
Project which was denied by F2FtCon April |7,20|4;

WHEREAS, Duke Energy filed urequest for rehearing of FERC'm order denying the
petition for declaratory ruling on May 16, 2014, which petition remains pending;
WHEREAS, the Conservation Organizations, Duke Energy and DCD82C have been able
to reach o settlement of all disputed issues in accordance with the terms and conditions of this
Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and
p,mrni000 contained herein, and for other good and vo|uoh|e consideration, the receipt and
sufficiency ofwhich io hereby acknowledged, the Parties agree uy fo||ovvy (all references to days
are considered Vxbe business days excluding bo|idoya):
I . DISMISSAL OF PETITION FOR WRIT OF CERTIORARI
The Parties will advise the South Carolina Supreme Court of this settlement and ask the
Court to Stay its deliberation on the Petition for Writ of Certiorari since certain conditions and
predecessor action must occur to fulfill this Agreement. Duke Energy will diynniya the Petition
for Writ of Certiorari vv|tbio five days of the iamuuoco of 401 certification by OCDH2C'
acceptable to Duke Energy and the Conservation Organizations, and the expiration of tile fifteen-
day period for Request for Final Review of the 40l ced|fico1ionissuance bJ any affected person
allowed under South Carolina law, provided no Requests for Final Review are received.
2. DISMISSAL O&rALC CONTESTED CASE
When Duke Energy dismisses its petition pursuant to Puru8,opb l, thoALC will again
have jurisdiction based on the remand from the South Carolina Court ofAppeals. Duke Energy
will therefore file o[4oticc of Voluntary Dionnimmol with Prejudice of the Contested Case within
five days of its notice of withdrawal of its Petition for Writ of Certiorari. The &LC is not
required toapprove this Agreement,
3. WITHDRAWAL OF FERC PETITION FOR REHEARING
On behalf ofthe Parties, Duke Energy will advise F2BLC of this Agreement and ask
FE8LC to stay its deliberation on Duke Energy's "Request for Rehearing of Order Denying
Petition for Declaratory Order" filed on May |6,20l4'FEBLC accession number 20|405l6-5094.
Duke 2oc,gy will p/|tbd,up/ that Request for Rehearing within five days oOrc the issuance of
401 certification hJOCD}{BC, acceptable to Duke Energy and the Conservation Organizations,
and the expiration of the fifteen-day period for Request for Final Review of the 4O\ certification
iamuoocc hJ any affected person u||ovved under South Carolina |up/, provided no Requests for
Final Review are received.
Duke Energy will submit an application for n 401 certification for dbe Project vvidbio
thirty RN days of the signing of this Agreement by all Parties. OCDBBC will expeditiously
review and process the application request. The Parties agree that the submission and processing
of the 40l application does not moot the current appeal of Duke Energy; only the issuance of a
401 certification, not contested by affected persons, which im acceptable to Duke Energy and the
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Conservation Organizations, will bigger the obligation of Duke Energy to diunniaa the Petition
for Certiorari under Item #1. Each Party will bear its own costs for the dismissed appeal.
The Parties agree that Duke Energy will mhmb an application for u4O| water quality
certification and that if SCDBBC issues u 401 water quality oeriUioudon it will issue u
certification that complies with the following terms:
(a) No inclusion by reference to, and express exclusion of, Section 4.6 of the Revised
Comprehensive Re|icenming Agreement y^CRA1 orof mitigation shall be made
in the 4O| certification;
(b) The new 4O\ certification will quote the following: '"This certification is made
subject 0o the provisions ofS.C. Reg. 6l-101(H)."
Duke Energy and the Conservation Organizations agree unfollows:
(a) The habitat flow amounts and schedules proposed in Section 4.1 of the CRA
(which refers to and |nuog7orucm the proposed Minimum Flows Article in
Appendix A, section A-2.0, of the CRA) do not require any changes;
(b) Duke Energy and the Conservation Organizations agree on the desbuh|bv and
pursuit of clear and enforceable license tcnna for the Spring Stable Flow Periods
Protocol (the "Pnm0ouo|') ua described in Section 4.0of the CBA, and the Watecee
P|oodpinin Inundation Procedure ("Pcooedure"),us dcyohhed in Section 4.9ofthe
CR&.
Duke Energy further agrees that, in carrying out its good faith commitments and
exercise of its discretion that are described in CRA Section 4.8 and CQA Section
4.9, it will operate its dunna upstream of the VVuteree Development in compliance
with requirements of the New License, CKA commitments, and c|cutrio
transmission system requirements (e.g., \/f\CAOL, 5BRC` and NBRC demands),
including without limitation, the Low Inflow Protocol ("LIP"), the Maintenance
and Emergency Protocol ("MEP") and reservoir target elevations, (collectively
the "Operational Requirements") and it will operate its Cu1avvhu-Wutcrce
Hydroelectric Project to implement the Protocol and the Procedure as long as
doing yo does not prevent compliance with any of the Operational Requirements.
Failure to implement the Protocol or the Procedure as u ccau|t of complying with
Operational Requirements uhu|| not constitute lack of good faith as that term is
used in CRA Section 4.8.2 and Section 4.9.1. The result ofevents and/or Duke
Energy's responses to events beyond its control and generating equipment
limitations shall not constitute |uok of good faith as that term is used in CRA
Section 4.Q.2 and Section 4.9.l.
3

Duke Energy will provide to the Conservation Organizations a copy of the annual
report documenting flow releases from the Wateree Development occurring
between February 15 and May 15 during the preceding calendar year, as
described in CRA Section 4.8.5. This report in combination with Duke Energy's
annual compliance report (CRA Appendix A, Section A-6.0, page A-14), which
will be publicly available to the Conservation Organizations via FERC, will
provide comprehensive data regarding Duke Energy's operation of all Project
reservoirs for the Conservation Organizations' review of the degree to which the
Protocol and the Procedure were achieved.
Duke Energy will provide the Conservation Organizations with the two notices of
possible New License amendments that it is required to give all parties to the
CRA by CRA Sections 4,8.6 and 4.9.2,
The Conservation Organizations will issue a letter to FERC after the 401 certification has
been issued (and no Requests for Final Review have been made) to state the following:
Dear Ms. Bose (at FERC): American Rivers and South Carolina Coastal Conservation
League advise the Federal Energy Regulatory Commission ("Commission") that a
settlement has been reached in the contested case, Duke Energy Carolinas, LLC,
Petitioner v. South Carolina Department of Health and Environmental Control,
Respondent, and American Rivers and South Carolina Coastal Conservation League,
Interveners, 09-ALJ-07-0377-CC, resulting in the issuance of the enclosed 401 water
quality certification ("WQC") from the State of South Carolina for relicensing of the
Catawba-Wateree Hydroelectric Project ("Project"). We are writing to inform the
Commission that we do not intend to oppose or challenge the WQC as issued. We
support expedited issuance of a New License to Duke Energy Carolinas, LLC for the
Project that incorporates the conditions of the WQC and is consistent with the
Comprehensive Relicensing Agreement, once the Commission has satisfied all regulatory
and statutory obligations.
SCDHEC will issue a letter to FERC after the 401 certification has been issued (and no
Requests for Final Review have been made) to state the following:
Dear Ms. Bose (at FERC): the South Carolina Department of Health & Environmental
Control advises the Federal Energy Regulatory Commission ("Commission") that a
settlement has been reached in the contested case, Duke Energy Carolinas, LLC,
Petitioner v. South Carolina Department of Health and Environmental Control,
Respondent, and American Rivers and South Carolina Coastal Conservation League,
Interveners, 09-ALJ-07-0377-CC, resulting in the issuance of the enclosed 401 water
quality certification ("WQC") from the State of South Carolina for relicensing of the
Catawba-Wateree Hydroelectric Project ("Project"). We support expedited issuance of a
New License to Duke Energy Carolinas, LLC for the Project that incorporates the
conditions of the WQC and is consistent with the Comprehensive Relicensing
Agreement, once the Commission has satisfied all regulatory and statutory obligations.
E

Nothing in this Agreement is intended to alter or conflict with the CRA, for instance by
requiring an act that the CRA forbids or vice versa, and to the extent that a court should find an
actual conflict, the provisions of the CRA shall control. The fact that a provision of this
Agreement requires something of Duke Energy that is in addition to or different from what the
CRA requires does not by itself constitute a conflict.
12. DISPUTE RESOLUTION
The remedies described in this paragraph shall be the sole remedies for violations of this
Agreement and shall not impair any other rights of any Party to this Agreement. If any Party
(the "Complaining Party") believes that another Party has failed to satisfy an obligation under
this Agreement or is otherwise in violation of this Agreement, the Complaining Party must give
the other Party thirty- (30) days' written notice with an opportunity to cure any alleged breach
before initiating any court action to resolve the dispute. The proper venue for any court action to
enforce terms of this Agreement is the Circuit Court for Richland County in Columbia, South
Carolina,

This Agreement shall inure to the benefit of and be binding upon all of the Parties and
their respective successors and assignees.
This Agreement shall be governed by and construed in accordance with the laws of the
State of South Carolina without regard to the conflict of law provisions of South Carolina or any
other state, and any provision herein that violates a statute or rule shall be void and
unenforceable. The invalidity or unenforceability of any provision of this Agreement shall in no
way affect the validity or enforceability of any other provision; the invalid or unenforceable
provision shall be stricken, without assessing damages or imposing penalties to either Party
arising out of said provisions by any court of competent jurisdiction.
The Parties agree to bear their own attorneys' fees, costs, and other expenses that have
been incurred in connection with any stage of the litigation described herein.
1 ► : ' _ , ry
This Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one and the same instrument.
17® ENTIRE AGREEMENT
This Agreement represents the entire agreement among the Parties and may not be
amended or modified except by a written instrument signed by all the Parties.
18® REVIEW AND SIGNING
By executing this Agreement, each Party represents that it has reviewed this Agreement,
that the Party has had the opportunity to discuss and has discussed the terms of this Agreement
with the Party's attorneys, that each of them has had a full and fair opportunity to review and
understand this Agreement, that the terms of the Agreement shall not be construed more
favorably or less favorably by or against any of the Parties, and that each Party has voluntarily
executed this Agreement.
C

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date and
year first above written.
Date:

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AMERICAN RIVERS

Date: J !
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