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HomeMy WebLinkAbout20031110 Ver 5_Court Case Settlement_20081210r? U • Duke 0 sPower® Nantahala Area Nantahala River Hydroelectric Project F E RC # 2692 Settlement Agreement December 2003 • Duke e Energy Duke Energy Corporation 422 South ( hurch Jtrcet PO. Box 1244 ChartUttr. NC 28201-1244 Carry S. Rice Mad Code PBO;E i'honc (704) 382-11 t I ?,n; e a du t:e-cnr_?y?_ a?i n Januarv 5.2001 1%1a,,alie R. Salai ?+ccrcfarv Federal EnergxIZegulatury Commission XXX First Street N.F. Wnshington. llC 20326 Re: Duke Power, a Division of'Duke Etzergp Corporation, Namahalrr Area, Nantalrala Hvilroelectrfc Project, FERCProject a'o. 2692 Dear M Salas. On behalf of Duke Power, a Division of'wke Energy Corporation. Nantahala Area, licensee for the Nantahala Hyclroclccuic Proicet ("Duke"), I am enclosing for hhn?? in the above-captioned pioceedin6 an on.ginal and eight copies of Duke's Settlement Aercemcnt and Explanatory Statement ith respect to the application for new license for the Nantahala Hydroelectric Project that ?X ill be tiled on or about Februar} 28, 2004. Copics of the Settlement Agreement and Explanatory Statement arc being screed on participants in the settlement process. H copy of this letter, all participants in file settlement process are hereby notified. in compliance with Rules 602(d)(2) of the Commission Rules of Practice and Procedure, I S C.F.R. ;S5.602(d)(2). that comments on the Settlement Agreement may be ailed not later than 20 days alter the filing ol'the Settlement Agreement and reply comments may be Bled not later than 30 days after the filing, of the Settlement Agreement, unless otherwise provided by the Commission. Should you have any questions regarding this matter. please do not hesitate to contact me at (704)382-81 1 1 or John Whittaker at (202) 371-5766. Sincerely. G S. ce (iSK:jg EnclOSUI'es pa Cc: (rvlenclosurc) Partici nts John A. Whittaker. Wlinston & Strawn J.C. Wishon. Jr J. Ci l.irtcbt;rger 0 0 UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION Duke Power, a division of } Duke Energy Corporation, ) Nantahala Area ) Project No. 2692 1 SUBMISSION BY DUKE POWER, A DIVISION OF DUKE ENERGY CORPORATION, NANTAHALA AREA, OF SETTLEMENT AGREEMENT AND REQUEST FOR ISSUANCE OF NEW LICENSE INCORPORATING TILE ARTICLES AND ATTACHMENTS SPECIFIED IN THE SETTLEMENT AGREEMENT Pursuant to Rule 602 of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission ("Commission" or "FERC") (18 C.F.R. ? 385.602), Duke Power, a Division of Duke Energy Corporation, Nantahala Area ("DPNA" or "Licensee"), licensee of the Nantahala Project No. 2692 ("Nantahala" or "the Project"), he reby (I ) submits o comprehensive settlement agreement ("Settlement Agreement") resolving all issues related to DPNA's application, inter ulia, for a new license for Nantahala that will be filed by DPNA with FERC on or before February 28, 2004, and (2) requests that the Commission issue a new license for the project incorporating the articles and attachments specifieoi in the Settlement Agreement and that arc othenvise consistent with the terms and provisions of the Settlement Agreement. In accordance with Rule 602(c)(1)(ii) (IS C, F, R. S 385.602(c)(1)(ii)), set forth below is an Explanatory Statement as to the Settlement Agreement and this submittal. • EXNL.IN:?'I't)12l' S'i'.-?'1'E,hIENT 1, Raetk2lound In October 2003. DPNA and 20 other participants in its cooperative rclicensing process tier Nantahala and the Dillshoro Project No. 2602 ('"Dillsboro"), entered into the Scitlemenf Agreement, ?Nhich resolves all issues related to DPNA's future application Icn, a neW lic:ensc for NAntabol<t and its pcmlin?L, application fir subsequent license for Dillsboro that was filed by DPNA with FERC Oil July 22.2001. I'hc participants in this process included state and Federal resource al-encics, tribes, local governments and associations.. and other nom- governmental org?ini -ation, 'She settlement process achieved a balance of competing resource interests consostfnt with the various goycrning statutes' "latemeltts oi' public interests This outcome was realized by de\eloping objecti\es and by reaching a compromise consensus on measures to protect. enhance. and mitigate impacts to ecological resources while providing for other beneficial uses of the Nantahala River and its tributaries. includino hydroelectric generation. consumptive uses ofhro_ject water. and recreation. A multi-party stakeholder group Nvas formed in November 2001 and, with the r ? help of' a facilitator fi-om the Natural Resources Leadership 111Stltttte o(' North Carolina State University, developed a charter setting forth the toround niles to aid in the decision-making process and to guide settlement discussions. Uver the course of the neXt two years. the stakeholder team met to identify key issues, develop studies. and negotMtc issues related to the Project. The stakeholder team developed a non-binding Consensus Agreement and those stakeholders in agrccrncnt with that Consensus Agreement signed it ott May 16, 2003. Following the signing of the Consensus Agreement, stakeholder members began converting it into a binding settlement agreement. seeking input cis needed from their lgal counsel- The final Settlement :agreement was signed by DPNA and 20 of the other 22 stakeholders, including all I 0 the relevant state and fedCral resource aI,ICIICIIS {'Taf'tlcs"),I at a Signing Ceremony In Ch rokcc, North Carolina, on October 29. 2003. A windoly Of oplx0rtunity was provided until Novc°mber t 5, 2003, for the additional stakeholders to sign the Settlement Agreement: none took advantage of that opportunity.` 11. 'She Settlement Agreement The Settlement Agreement encompasses operations and obiigations at Nantahala and Dillshoro and is related to and similar in many respects to another settlement agreement entered into for the West Fork Project No. 2686 ("West fork") and the Fast Fork Project No. 2698 ("Fast lrork").3 The Settlement Agreement relates to issues lm olvin(_? reservoir levels. public recreatlori facilities. Public information, minimum flaws, recreational flows. resource enhancements. Shoreline management, cultural resources, sediment management. partnerships in • The 21 Parties to the Settlement Agreement are American Whitewater Affiliation. Big Choga Homeowners Association, Carolina Canoe Club, DPNA, Eastern Band of Cherokee Indians, Mountain Shadows llotncovvners Association, Nantahala Community. Nantahala Gorge Association, Nantahala Highlands Estates Property Owncrs Association, Nantahala Outdoor Center. Nantahala Racing Club, Natural Resources Conservation Service, North Carolina Department of f,nvironment and Natural Resources ("NC Division of Water Resources, NC Division oh Parks & Recreation, NC Division of Water Quality), North Carolina Wildlife Federation. North Carolina Wildlife Resources Commission, Southwestern North Carolina Resource CODSCINation and Development Council, Swain County Economic Development Commission, Swain County Soil and Water Conservation District, North Carolina Council oi' Trout Unlimited, Inc.. United States Fish & Wildlife Service and the United States Forest Service. z The stakeholders involved in the cooperative rclicensing process that signed the Consensus Agreement but did not sign the Scttlcment Agrcement were the Nantahala Volunteer Fire & Rescue Department and American Ricers. ' A Ruie 602 submittal with respect to the icttlenicnt agreement on the East Fork and West Fork Projects is being made concurrently with this tiling: the application for new license for these two projects will be filed by DPNA with FF:KC on or before January 31 .2004. 0 the sharin-, of benefits, hydroelectric operational flexibility, recreation area construction and management, and compliance monnornig, and report The Settlelllent Agreement contains four distinct aspects: A. Proposed License Articles The Settlement Agreement contains cloven proposed license articles for inelusion in the new license for Nantahala 'I'liese articles are clearly identified throughout the Settlement Agrccmcrit. Section 16.0 of the Settlement Atarecinent acknovvled es that the Parties entered into the Settlement Agreement with the express understanding that the C'01111111SSion would issue a new license ineorporatin;() the proposed license article:: without material modification. Material changes to the proposed license articles would lead to adverse conscquenees, including the potential for Parties to withdraw or for the entire Settlement .Agreement to be terminated. 'l'hcrefore, the. Parties urge the Commission to seriously regard the parties' intentions and to i adopt the proposed license articles as submitted without material moditicatiort As noted, the Settlement Agreement resolves all issues with respect to the Project, including Dillsboro. As discusses! in Section 6.4 of the Settlement Agreement, DPNA and the other Parties have agreed that DPNA will the with FFRC by June 1, 2004, an application to surrender the existing license for Dillsboro, deconninssion and remove Dillsboro Dam, and close or otherwise dispose of the Dillsboro Powerhouse 4 However, DPNA is not requesting in this Rule 002 submission that the Commission take any action with respect to Dillsboro. DPNA will request Commission action a to Dillsboro in its license surrender application. DPNA notes, however, that, if Dillsboro Dam is not sernovcd, one portion of one of the proposed licellse articles for Nantah?ala (proposed Article 404(A) pertaining; to tntnzmitln t]otiti?s) niay change and 4 The Execa,tive Summary of the Environmental ,Assessment prepared by the Parties on the removal 4 Dillshoro Dam is appended to the Settlement Agreement as Attachment F. • 4 that certain ntlhcr ohligations of the Parties under the Settlement Ajr-cement will be affected. ConsequentlV. DPNA urOes the Commission to act on the license sw7render application fry, Dillsboro to be filed by June 1,2004. before rssutng the new license for Nantahala. B. Non-License Settlement "Terms In addition to the proposed license articles, the Settlement Agreement contains a number of provisions that the Parties have agreed to undertake outside the licenses and hence cyould not become license provisions or articles. These agreemerit provisions are contractual in nature and in many instances require 1)PNA to undertake certain actions. In other instances. these provisions require other parties to take certain actions or prohibit Parties from 0110,101112, ill certain activities. Examples include cost-share funding for certain enhancements, providing public information on Duke Power's website and telephone system. and undertaking certain actions pnor to the new license being issued for Nantahala. 0 C. General Terms The Settlement Agreement also contains a number of general, terms and miscellaneous provisions related to administrative matters and to some substantive matters, such as prohibiting Parties from seeking actions inconsistent with the terms of the Settlement Agreement. 'T'here arc terms dealing with the procedure to be invoked if all agency or other entity with regulatory jurisdiction takes an action inconsistent with the Settlement Agreement and terms dealing with typical contractual matters such as enforceability, modification. controlling law. etc. D. Attachments fpcorporated by Reference Appended to the Settlement Agreement are ten attachments that are either included for illustrative purposes or are to he incorporated into the Settlement Agreement and the new license for Nantahala. These attachnicnts include the earlier non-binding Consensus • 5 Agreement for the Nantahala Cooperative Stakeholder Tear. the Low Inflow Protocol. the Hydro Project Maintenance and Emer,rencN? Protocol. a Shoreline Management Program, a Draft Access Area Matnteriance A-reement bewxen DPNA and the North Carolina Wildlife Resources Commission, a Dillsboro Dam Removal Environmental Assessment Executive Summary, a list of Designated RepresentAiVes for Receipt of Notices, a listing of Terms and Phrases and their Definitions and Abbreviations, a Riparian Flahitat Enhancement Fund Description, and a Description of the Conservation Tract. The attachments that the Parties to the Settlement Agreement request the Commission incorporate into the new liccrnsc are Attachment S (Low Inflow Protocol (LIP) for the Naniahala Project) and Attachment C (Ilydro Project Maintenance & Erergenev Protocol MPMEP) li)r the Nantnhala Project). Sce proposed license Articles 401, 404,40~, and 406 for the Project Proposed license article 408 references Attachment D to the Settlement Agreement (Shoreline Management Program for the Nnntahala Ilydro Projects including- Shoreline Classification Maps, Lake Use Restrictions, Vegetation Management Requirements and the Shoreline Management Guidelines); the documents in attachment D also will be included in the application for new license for Nantahala. Ill, Supportint Documentation The Parties to the Settlement Agrecrnent concur that the information developed as part of the stakeholder process. which will he included in the application for new license, supports the mitigation and enhancement measures contained in the Settlement Agreement, includin?,r DPNA's obligations set forth in the proposed license articles. A variety of studies agreed to as pail of the cooperative stakeholder team process were completed before the finalization of the Settlement Agreement Those studies, along with other documents. serve as • 6 the basis l()r discussions and negotiations leading to the consensus reflected in the Settlement Agreement. REQUEST FOR COMMISSION ACTION CONSISTENT WITH SETTLEMENT AGREEMENT DPNA respectfully requests that the Commission issue a new license for Nantalhala incorporating the articles and attachments spccificd in the Settlement Agreement as discussed Kiho%e. and that is other'.vise cemsistcut with the ternti and provisions of the Settlement Agreement. • • Respe t `ully submitted, I r ? Garr, S. R' Associate ,eneral Counsel Duke Fnergy 422 South Church Street Charlotte, NC 28202-1904 Phone: (704) 382-8111 Fax. (704) 382-8137 t -Mail. gsricc(a?duke-energy. coin nC:;3;96.2 0 CERTIFICATE OF SERVICE !_ ih?: undersigned, do hereby r..crtif' ' that colnc5 of two o f'the iareguing docun,:ents, the nownpual Ater and 1'?planatory Statement were served on Me I'artic.:paws as referenced in footnows &' 2 F'pla.r,?twy statement by mailing same in the united States tnaiL properly addressed atul tirst Aws hunagv prepaid, on this the. 8th day of January, 2001 The Settlement Agreement and all its related a±taclm?ents e pramnsly h"n scni to;d] the Participants and a thcakwe not included In this InaiIitltf. Garry S. Associate eneraI Counsel 422 South Church Street Charlotte, NC' 2, 202-1904 Phone: (704) 382-811 1 Fax (704) 3X2-8137 E-Mal priculldukc-ener,com • DC:332596.2 UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION Duke Power, a division of ) Duke Energy Corporation, ) Nantahala Area ) Project No. 2692 SUBMISSION BY DUKE POWER, A DIVISION OF DUKE ENERGY CORPORATION, NANTAHALA AREA, OF SETTLEMENT AGREEMENT AND REQUEST FOR ISSUANCE OF NEW LICENSE INCORPORATING THE ARTICLES AND ATTACHMENTS SPECIFIED IN THE SETTLEMENT AGREEMENT Pursuant to Rule 602 of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission ("Commission" or "FERC") (18 C.F.R. § 385.602), Duke Power, a Division of Duke Energy Corporation, Nantahala Area ("DPNA or "Licensee"), licensee of the • Nantahala Project No. 2692 ("Nantahala" or "the Project"), hereby (1) submits a comprehensive settlement agreement ("Settlement Agreement") resolving all issues related to DPNA's application, inter alia, for a new license for Nantahala that will be filed by DPNA with FERC on or before February 28, 2004, and (2) requests that the Commission issue a new license for the project incor-poratingthe articles and attachments specified in the Settlement Agreement and that are otherwise consistent with the terms and provisions of the Settlement Agreement. In accordance with Rule 602(c)(1)(ii) (18 C.F.R. § 385.602(c)(1)(ii)), set forth below is an Explanatory Statement as to the Settlement Agreement and this submittal. 0 t EXPLANATORY STATEMENT 1. Backimound In October 2003, DPNA and 20 other participants in its cooperative relicensing process for Nantahala and the Dillsboro Project No. 2602 ("Dillsboro"), entered into the Settlement Agreement, which resolves all issues related to DPNA's future application for a new license for Nantahala and its pending application for subsequent license for Dillsboro that was filed by DPNA with FERC on July 22,2003. The participants in this process included state and federal resource a(xencies, tribes, local governments and associations, and other non- governmental organizations. The settlement process achieved a balance of competing resource interests consistent with the various governing statutes' statements of public interests. This outcome was realized by developing objectives and by reaching a compromise consensus on measures to protect, enhance, and mitigate impacts to ecological resources while providing for other beneficial uses of the Nantahala River and its tributaries, including hydroelectric generation, consumptive uses of project water, and recreation A multi-party stakeholder group was formed in November 2001 and, with the help of a facilitator from the Natural Resources Leadership Institute of North Carolina State University, developed a charter setting forth the ground rules to aid in the decision-making process and to guide settlement discussions. Over the Course of the next two years, the stakeholder team met to identify key issues, develop studies, and negotiate issues related to the Project. The stakeholder team developed a non-binding Consensus Agreement and those stakeholders in agreement with that Consensus Agreement signed it on May 16, 2003. Following the signing of the Consensus Agreement, stakeholder members began converting it into a binding settlement agreement, seeking input as needed from their legal counsel. The final Settlement Agreement was signed by DPNA and 20 of the other 22 stakeholders, including all 0 the relevant state and federal resource agencies ("Parties"V at a signing ceremony in Cherokee, North Carolina, on October 29, 2003. A window of opportunity was provided until November 15,2003, for the additional stakeholders to sign the Settlement Agrecnnent; none took advantage of that opportunity.2 if. The Settlement Agreemen t The Settlement Agreement encompasses operations and obligations at Nantahala and Dillsboro and is related to and similar in many respects to another settlement agreement entered into for the West Fork Project No. 2686 („West Fork") and the East Fork Project No. 2698 ("East Fork'").3 The Settlement Agreement relates to issues involving reservoir levels, public recreation facilities, public intormation, minimum flows, recreational flows, resource 0 enhancements, shoreline management, cultural resources, sediment management, partnerships in The 21 Parties to the Settlement Agreement are American Whitewater Affiliation, Big Choga Homeowners Association, Carolina Canoe Club, DPNA, Eastern Band of Cherokee Indians, Mountain Shadows Homeowners Association, Nantahala Community, Nantahala Gorge Association, Nantahala Highlands Estates Property Owners Association, Nantahala Outdoor Center, Nantahala Racing Club, Natural Resources Conservation Service, North Carolina Department of' Environment and Natural Resources (NC Division of Water Resources, NC Division of Parks & Recreation, NC Division of Water Quality), North Carolina Wildlife Federation, North Carolina Wildlife Resources Commission, Southwestern North Carolina Resource Conservation and Development Council, Swain County Economic Development Commission, Swain County Soil and Water Conservation District, North Carolina Council of Trout Unlimited, Inc., United States Fish & Wildlife Service and the United States Forest Serl'ice. 2 The stakeholders involved in the cooperative relicensing process that signed the Consensus Agreement but did not sign the Settlement Agreement were the Nantahala Volunteer Fire &. Rescue Department and American Rivers. 3 A Rule 602 submittal with respect to the settlement agreement on the East Fork and West Fork Projects is being made concurrently with this tiling; the application for new license for these two projects will be filed by DPNA with FERC on or before January -13 1,2004. the sharing of benefits, hydroelectric operational flexibility, recreation area construction and management, and compliance monitoring and reporting. The Settlement Agreement contains four distinct aspects: Proposed License Articles The Settlement Agreement contains eleven proposed license articles for inclusion in the new license for Nantahala. These articles are clearly identified throughout the Settlement Agreement. Section 16.0 of the Settlement Agreement acknowledges that the Parties entered into the Settlement Agreement with the express understanding that the Commission would issue a new license incorporating the proposed license articles without material modification. Material changes to the proposed license articles would lead to adverse consequences, including the potential for Parties to withdraw or for the entire Settlement Agreement to be terminated. Therefore, the Parties urge the Commission to seriously regard the Parties' intentions and to adopt the proposed license articles as submitted without material modification. As noted, the Settlement Agreement resolves all issues with respect to the Project, including Dillsboro. As discussed in Section 6.4 of the Settlement Agreement, DPNA and the other Parties have agreed that DPNA will file with FERC by June 1, 2004, an application to surrender the existing license for Dillsboro, decommission and remove Dillsboro Dam, and close or otherwise dispose of the Dillsboro Powerhouse.4 However, DPNA is not reciuesting in this Rule 602 submission that the Commission take any action with respect to Dillsboro. DPNA will request Commission action as to Dillsboro in its license surrender application. DPNA notes, however, that, if Dillsboro Dam is not removed, one portion of one of the proposed license articles for Nantahala (proposed Article 404(A) pertaining to minimum flows) may change and 4 The Executive Summary of the Environmental Assessment prepared by the Parties on the removal of Dillsboro Dam is appended to the Settlement Agreement as Attachment F. 4 that certain other obligations of the Parties under the Settlement Agreement will be affected. Consequently, DPNA urges the Commission to act on the license surrender application for Dil lsboro to be filed by.June 1,2004, before issuing the new license for Nantahala. B. Non-License Settlement Terms In addition to the proposed license articles, the Settlement Agreement contains a number of provisions that the Patties have agreed to undertake outside the licenses and hence would not become license provisions or articles. These agreement provisions are contractual in nature and in many instances require DPNA to undertake certain actions. In other instances, these provisions require other Parties to take certain actions or prohibit Parties from engaging in certain activities. Examples include cost-share finding for certain enhancements, providing public information on Duke Power's website and telephone system, and undertaking certain 0 actions prior to the new Iicense being issued for Nantahala. C. General Terms The Settlement Agreement also contains a number of general terms and miscellaneousprovisions related to administrative matters and to some substantive matters, such as prohibiting Parties from seeking actions inconsistent with the terms of the Settlement Agreement. There are terms dealing with the procedure to be invoked if an agency or other entity with regulatory jurisdiction takes an action inconsistent with the Settlement Agreement and terms dealing with typical contractual matters such as enforceability, modification, controlling law, etc. D. Attachments lncoroorated by Reference Appended to the Settlement Agreement are ten attachments that are either included for illustrative purposes or are to be incorporated into the Settlement Agreementand the new license for Nantahala. "These attachments include the earlier non-binding Consensus Agreement for the Nantahala Cooperative Stakeholder 'Team, the Low Inflow Protocol, the Hydro Project Maintenance and Emergency Protocol, a Shoreline Management Program, a Draft Access Area Maintenance Agreement between DPNA and the North Carolina \Vildlife Resources Commission, a Dillsboro Dam Removal Environmental Assessment Executive Summary, a list of'Designated Representatives for Receipt of Notices, a listing of Terms and Phrases and their Definitions and Abbreviations, a Riparian Habitat Enhancement Fund Description, and a Description of the Conservation Tract. The attachments that the Parties to the Settlement Aureement request the Commission incorporate into the new license are Attachment B (Low Inflow Protocol (LIP) for the Nantahala Project) and Attachment C (Hydro Project Maintenance & Emergency Protocol (HPMEP) for the Nantahala Project). See proposed license Articles 401, 404, 405, and 406 for the Project. Proposed license article 408 references Attachment D to the Settlement Agreement (Shoreline Management Program for the Nantahala Hydro Projects including Shoreline Classification Maps, Lake Use Restrictions, Vegetation Management Requirements and the Shoreline Management Guidelines); the documents in Attachment D also will be included in the application for new license for Nantahala. III. SuaportW2 Documentation The Parties to the Settlement Agreement concur that the information developed as part of the stakeholder process, which will be included in the application for new license, supports the mitigation and enhancement measures contained in the Settlement Agreement, including DPNA's obligations set forth in the proposed license articles. A variety of studies agreed to as part of the cooperative stakeholder team process were completed before the finalization o f the Settlement Agreement. Those studies, along with other- documents, serve as 0 6 0 the basis for discussions and negotiations leading to the consensus reflected in the Settlement Agreement. REQUEST FOR COMMISSION ACTION CONSISTENT WITH SETTLEMENT AGREEMENT DPNA respectfully requests that the Commission issue a new license for Nantahala incorporating the articles and attachments specified in the Settlement Agreement as discussed above and that is otherwise consistent with the terms and provisions of the Settlement Agreement. • • Respectfullysubmitted, Garry S. Rice Associate General Counsel Duke Energy 422 South Church Street Charlotte, NC 28202-1904 Phone: (704) 382-8111 Fax: (704) 382-8137 E-Mail: gsrice@duke-energy.com DC:332546.2 NCST SETTLEMENT AGREEMENT STATE OF NORTH CAROLINA • COUNTY OF MECKLENBURG DUKE POWER, a division of DUKE ENERGY CORPORATION, NANTAHALA AREA SETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT ("Agreement" or "Settlement Agreement"), made and entered into as of the 29th day of October, 2003, by and between DUKE POWER, a division of DUKE ENERGY CORPORATION, NANTAHALA AREA, a corporation organized and existing pursuant to the laws of the State of North Carolina, with its principal place of business in Mecklenburg County, North Carolina ("DPNA" or "the Licensee"); the AMERICAN WHITEWATER AFFILIATION (AW); BIG CHOGA HOMEOWNERS ASSOCIATION (BCHA); CAROLINA CANOE CLUB (CCC); EASTERN BAND OF CHEROKEE INDIANS (EBCI); MOUNTAIN SHADOWS HOMEOWNERS ASSOCIATION; NANTAHALA COMMUNITY; NANTAHALA GORGE ASSOCIATION (NGA); NANTAHALA HIGHLANDS ESTATES PROPERTY OWNERS ASSOCIATION; NANTAHALA OUTDOOR CENTER (NOC); NANTAHALA RACING CLUB (NRC); NATURAL RESOURCES CONSERVATION SERVICE (NRCS); NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES (NCDENR) WITH ITS DIVISION OF WATER RESOURCES (NCDWR), ITS DIVISION OF PARKS & RECREATION (NCDPR), AND ITS DIVISION OF WATER QUALITY (NCDWQ); NORTH CAROLINA WILDLIFE FEDERATION; NORTH CAROLINA WILDLIFE RESOURCES COMMISSION (NCWRC); SOUTHWESTERN NORTH CAROLINA RESOURCE CONSERVATION & DEVELOPMENT; SWAIN COUNTY ECONOMIC DEVELOPMENT COMMISSION; SWAIN COUNTY SOIL & WATER CONSERVATION DISTRICT; NORTH CAROLINA COUNCIL OF TROUT UNLIMITED (TU); UNITED STATES DEPARTMENT OF INTERIOR WITH ITS FISH & WILDLIFE SERVICE (USFWS); UNITED STATES DEPARTMENT OF AGRICULTURE WITH ITS FOREST SERVICE (USFS) (collectively "Stakeholders"), (all referenced stakeholders and DPNA collectively "Parties"), provides as follows: WITNESSETH WHEREAS, DPNA operates a hydroelectric power project on the Nantahala River in Macon County and Clay County, NC known as the Nantahala Project (the "Project") pursuant to a license issued by the Federal Energy Regulatory Commission ("FERC") (FERC Project No. 2692) and consisting primarily of the following major components (see the Exhibit K drawing from the existing FERC license for the Nantahala Project which describes the project boundary in more specific detail, including but not limited to any shoreline buffer strips, tailrace and bypassed stream reaches and various rights-of-way):: ?J NCST_Settlement Agreement. ORIGINAL. doc I Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT a) A 1605-acre reservoir (the "Reservoir" or "Nantahala Lake") located approximately ten miles upstream of the confluence of the Nantahala Powerhouse Tailrace with the Nantahala River; and b) An earth and rock fill dam (250 ft high x 1,042 ft long) (the "Nantahala Dam") impounding the water in the Nantahala River near River Mile 23.0; and c) A small (16 ft high x 115 ft long) concrete dam ("Whiteoak Creek Diversion Dam") impounding the water in Whiteoak Creek near River Mile 2.4 creating a pond ("Whiteoak Creek Pond") with negligible storage with approximately two miles of tunnel and steel pipeline ("Whiteoak Creek Penstock") connecting Whiteoak Creek Pond to the Nantahala Penstock about '/4 mile upstream of the confluence of Dicks Creek with the Nantahala River; and d) A small (16 ft high x 109 ft long) concrete dam ("Dicks Creek Diversion Dam") impounding the water in Dicks Creek near River Mile 1.2 creating a pond ("Dicks Creek Pond") with negligible storage with approximately 3/4 mile of steel pipeline ("Dicks Creek Penstock") connecting to the Nantahala Penstock about 0.5 mile upstream of the confluence of Dicks Creek with the Nantahala River; and e) A small (4 ft high x 39 ft long including wing walls) concrete dam ("Diamond Valley Diversion Dam") impounding a small brook which diverts water into Dicks Creek Pond through a corrugated steel culvert pipe; and f) A powerhouse ("Nantahala Station" or "Nantahala Powerhouse") located on the Nantahala River near River Mile 13.8 and being supplied with water from Nantahala Lake by a 5.6-mile tunnel and steel penstock ("Nantahala Penstock") extending from Nantahala Dam; WHEREAS, on August 6, 2000, DPNA (formerly Nantahala Power & Light, a Division of Duke Energy Corporation) filed a Notice of Intent with the FERC to apply for a new license for the Project; WHEREAS DPNA, in addition to the Project, also operates and is applying for new or subsequent FERC licenses for six of its other hydroelectric power projects located in western North Carolina which are: the East Fork Project (FERC Project No. 2698), the West Fork Project (FERC Project No. 2686), the Dillsboro Project (FERC Project No. 2602), the Bryson Project (FERC Project No. 2601), the Mission Project (FERC Project No. 2619) and the Franklin Project (FERC Project No. 2603) (collectively all seven are "the DPNA Hydro Projects"); WHEREAS, on November 14, 2001, the Parties, plus AMERICAN RIVERS and the NANTAHALA VOLUNTEER FIRE & RESCUE DEPARTMENT formally met as the Nantahala Cooperative Stakeholder Team (NCST) to begin the process of developing a non- binding consensus agreement with regard to the issues related to the relicensing of the Project; WHEREAS, on May 16, 2003, the Parties plus AMERICAN RIVERS and the NCST_Settlement_Agreement.ORIGINAL.doc 2 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT NANTAHALA VOLUNTEER FIRE & RESCUE DEPARTMENT signed a non-binding Consensus Agreement (Attachment A) concerning all substantive matters of interest to them related to the relicensing of the Project, and the Parties indicated on said Consensus Agreement their desire to work together to convert the Consensus Agreement into this binding Settlement Agreement, and AMERICAN RIVERS and the NANTAHALA VOLUNTEER FIRE & RESCUE DEPARTMENT, by their qualified signatures on said Consensus Agreement, indicated that they opposed certain portions of the Consensus Agreement and would not participate in the development of this binding Settlement Agreement; WHEREAS, a similar process was used by another collaborative group, the Tuckasegee Cooperative Stakeholder Team (TCST), to resolve issues related to the relicensing of the East Fork Project, the West Fork Project and the Dillsboro Project; WHEREAS, on May 16, 2003, members of the TCST also signed a non-binding consensus agreement concerning all substantive matters of interest related to the relicensing of the East Fork, West Fork and Dillsboro projects; WHEREAS, on or before February 28, 2004, DPNA will file an application consistent with this Settlement Agreement in all respects with the NCDWQ for a Water Quality Certification for the Project pursuant to §401 of the Clean Water Act, as amended; WHEREAS, on or before February 28, 2004, DPNA will file an application consistent with this Settlement Agreement in all respects with the FERC for a new license ("New License") for the Project; WHEREAS, DPNA's application for the New License will include proposed facilities to enhance day-use and camping recreational opportunities at the Project's reservoir, day-use activities along the Nantahala River Bypassed Reach and tailrace, flow regimes for the bypassed reaches and the tailrace, enhanced communication of reservoir levels and flow releases, and other resource enhancement initiatives; WHEREAS, the Parties agree that generating power at the Station and providing recreational releases into the tailrace, as well as providing for minimum stream flows in the bypassed reaches, recreational stream flows in the Nantahala River Bypassed Reach, and managing the Reservoir's levels for fish habitat enhancement and other purposes are all important uses of the limited waters of the Nantahala River and its tributaries and that the terms of this Settlement Agreement strike a reasonable balance among these uses; WHEREAS, the Parties agree that sharing the burden during periods of low inflow and maintenance and emergency conditions is important, and that the Low Inflow Protocol (Attachment B) and the Hydro Project Maintenance & Emergency Protocol (Attachment C) are reasonable compromises by the Parties to define operational changes during these time periods; WHEREAS, there are terms, phrases and abbreviations specific to the Stakeholder • Process that led to this Settlement Agreement and the significant terms, phrases and abbreviations are defined in Attachment H; NCST_Settlement_Agreement.ORIGINAL. doc 3 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT 40 WHEREAS, this Settlement Agreement is the culmination of the Parties' desire, as set forth in the May 16, 2003 Consensus Agreement, to draft from the Consensus Agreement a binding agreement, and this Settlement Agreement faithfully sets forth in more detail and specificity, in contractual terms, the concepts described and to which the Parties agreed in the Consensus Agreement; WHEREAS, the Parties have now reached full agreement on the resolution of all of the material resource matters at issue in the New License for the Project, specifically including but not limited to reservoir level limitations, public recreational facilities, minimum flow requirements for habitat and recreation, downstream recreational flows, flow and reservoir level communications, resource enhancements, shoreline management guidelines, cultural resources, sediment management, and compliance monitoring and reporting requirements, all of which result in the Parties relinquishing certain arguments and potential outcomes in exchange for the certainty of the agreed upon terms and conditions. • NCST_Settlement_Agreement.ORIGINAL.doc 4 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT C NOW, THEREFORE, IN CONSIDERATION of all other actions and undertakings as set forth herein below, the Parties contract, settle and agree as follows: 1.0 Reservoir Level Agreements 1.1 The Parties agree to the following reservoir level limitations. 1.2 By signing this Agreement, the Parties recommend that the following proposed Article 401 be incorporated into the New License that the FERC is expected to issue for the Project: ARTICLE 401 (A) The Licensee shall use the existing float-operated gage or a suitable replacement gage to monitor the actual level of Nantahala Lake. The Licensee shall calibrate the reservoir stage level gage within 60 days following its acceptance of this license and at least once every two years thereafter. is (B) The Licensee shall maintain the elevation of Nantahala Lake between the Normal Minimum and Normal Maximum Elevations ("Normal Operating Range") indicated in the table below, except when the Licensee is permitted to vary from the Normal Operating Range as established below. All elevations are relative to the top of the dam (including the flood gates and fuse plugs), with 100.0 ft = Normal Full Pond Elevation (approximately 3012.2 ft USGS datum). The elevations shown are for the first day of the given month. Elevations for other days of the month are determined by linear interpolation. 1Vnrmal FW1 Pnnd F7Pvntinn = 7000 ft = nnnrnvimntoly zo I? '),o Normal Normal Target Normal Month Minimum Elevation ft Elevation (ft) Maximum Elevation ft Jan 73 78 83 Feb 76 83 88 Mar 78 88 93 Apr 85 93 98 May 93 97 99.5 Jun 93 97 99.5 Jul 93 97 99.5 Au 91 96 99.5 Se 88 93 98 Oct 83 88 93 Nov 78 83 88 Dec 73 78 83 t NC ST_Settlement_Agreement.ORIGINAL. doc 5 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT (C) The Licensee shall endeavor in good faith to achieve the Normal Target Elevations at Nantahala Lake. (D) The Licensee may temporarily vary from the Normal Operating Range as identified above if required by conditions beyond the Licensee's control or by operating emergencies or maintenance needs as defined in Attachments B and C. Such temporary variances shall be in accordance with the Low Inflow Protocol or the Hydro Project Maintenance & Emergency Protocol, incorporated into this license as Attachments B and C, respectively. (E) There will be no reservoir level limitations on Whiteoak Creek Pond or Dicks Creek Pond and no requirements for the Licensee to provide actual reservoir level monitoring devices at those two ponds. END OF PROPOSED FERC LICENSE ARTICLE 401 1.3 The Parties agree that as long as the actual level of Nantahala Lake is maintained within the Normal Operating Range as identified above or appropriately within the boundaries as identified in the Low Inflow Protocol (Attachment B) or the Hydro Project Maintenance & Emergency Protocol (Attachment C), then DPNA will be in compliance with Paragraph 1.2 of this Settlement Agreement. 1.4 The Parties, with the exception of NCDENR, agree that as long as the actual level of Nantahala Lake is maintained within the Normal Operating Range as identified above or appropriately within the boundaries as identified in the Low Inflow Protocol (Attachment B) or the Hydro Project Maintenance & Emergency Protocol (Attachment C), then DPNA will be in compliance with requirements protective of water quality and with the expected conditions of the 401 Water Quality Certification with regard to reservoir levels at the Project. NCDENR agrees that, once the 401 Water Quality Certification is issued, actual compliance with the terms and conditions thereof will provide adequate assurance of compliance with State water quality standards and other appropriate requirements of State law. 1.5 Beginning January 1, 2004, and to the extent permitted by DPNA's current license, DPNA shall implement the above Normal Operating Range for Nantahala Lake and may use the above referenced Low Inflow Protocol and Hydro Project Maintenance & Emergency Protocol. The Licensee shall fully comply with these protocols when specified by the New License. 2.0 Public Recreation Facility Agreements 2.1 The Parties agree to the following recreational facilities. 2.2 By signing this Agreement, the Parties recommend that the following proposed Article 402 be incorporated into the New License that the FERC is expected to issue for the • Project: NCST_Settlement Agreement.ORIGINAL.doc 6 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT 0 ARTICLE 402 (A) The Licensee shall complete the following recreation facilities enhancements no later than five years after the last of the following occurrences: acceptance by the Licensee of this license, final Commission approval for any construction within the project boundary, and final construction approvals required from other regulatory agencies: (1) Addition of one pump-and-haul-type toilet, trash collection (for support of recreational use only), lighting (designed to minimize effects on fish and wildlife), and a bank fishing area at each of the Big Choga and Rocky Branch Access Areas; (2) Reimbursement to the USFS of up to $50,000 for the USFS's costs for construction of scattered boat-accessible-only primitive camping sites on USFS- owned property, provided that further evaluation by the Licensee in consultation with the USFS and NCDPR indicates a need for these facilities; or, if the evaluation indicates no need for these facilities or if the USFS requires reimbursement of less than $50,000, then the Licensee shall reimburse USFS with the remaining funds for the USFS's costs for construction of the USFS facilities noted in (4) and (5) below; (3) Construction of one wildlife viewing platform at either the Big Choga Access Area, Rocky Branch Access Area, or USFS-owned property adjoining Nantahala Lake, to be constructed by the Licensee if it is located on property owned by the Licensee or the Licensee shall reimburse the USFS for the USFS's costs if it is on USFS-owned property, provided the cost does not exceed $5,000 and the Licensee, the NCWRC, USFS, and USFWS agree that the platform is needed. (4) Convey to the USFS approximately three acres of the Licensee's property for expansion of the parking area at the USFS-owned boating access area at the confluence of Rowlands Creek with the Nantahala River, with the final property conveyance boundaries being established as only those properties needed for the USFS to expand the parking area per a USFS-prepared layout of the expanded parking area that is mutually agreeable to the USFS and the Licensee; • (5) Convey approximately two acres of the Licensee's property and lease additional portions of the Licensee's property (up to an approximate total of four acres of property leased and conveyed) to the USFS near and including the land presently used as a commercial access launch site near River Mile 13.8 of the Nantahala River so the USFS can improve the commercial boat launch site, with the final property conveyance and lease boundaries being established as only those properties needed for the USFS to improve the commercial boat launch site per a USFS-prepared facilities layout that is mutually agreeable to the Licensee, the USFS and the Nantahala Gorge Association; NCST_Settlement_Agreement.ORIGINAL. doe 7 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT 40 (6) Construction of barrier-free fishing access on the Licensee's property located on the Nantahala River Bypassed Reach near River Mile 14.0; (7) Construction of parking for at least five cars and an access trail to the Nantahala River Bypassed Reach on USFS-owned property on Wayah Road (State Road No. 1310) below the Cascades section near River Mile 16.5; (8) Construction of parking for at least five cars and a viewing platform on USFS- owned property along Wayah Road (State Road No. 1310) at the "Horns of God" rapid in the Cascades section near River Mile 17.0; (9) Construction of parking for at least five cars on USFS-owned property along Old River Road (Forest Route No. 308) at Slot Falls near River Mile 17.8. (B) The Licensee shall complete the following recreation facilities enhancements within 15 years after the last of the following occurrences: acceptance of this license by the Licensee, final Commission approval for any construction within the project boundary, and final construction approvals required from other regulatory agencies: (1) Construction of parking for at least three cars along Old River Road (Forest Route No. 308) at Cocktail Falls on USFS-owned property near River Mile 19.0; (2) Construction of parking for at least three cars along Old River Road (Forest Route No. 308) near Whiteoak Creek on USFS-owned property near River Mile 17.6; (3) Paving of the parking areas at Big Choga and Rocky Branch Access Areas. (C) To plan for construction, operation and maintenance of the recreational facilities identified in Article 402(A) and (B) above, the Licensee shall complete the following within one year after its acceptance of this license: (1) Consult with the appropriate federal, state and/or local agencies and other interested parties and prepare a Recreation Facilities Plan that describes in sufficient detail the facilities to be constructed within the project boundaries, provides a schedule for facility construction and describes the associated facility operation and maintenance plans and responsibilities; (2) File the Recreation Facilities Plan with the Commission for approval. END OF PROPOSED FERC LICENSE ARTICLE 402 2.3 The Parties agree that with respect to the leasing and / or conveyance of DPNA property per proposed Article 402(A)(4) and (5) above: (1) DPNA will lease and/or convey to the USFS only that portion of land required for the recreation facilities that will be installed within the first five years following DPNA's acceptance of the New License; (2) DPNA will NCST_Settlement Agreement.ORIGINAL.doc 8 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT determine if its property will be leased or conveyed after DPNA, the Nantahala Gorge Association (NGA), and the USFS finalize the USFS-prepared facilities layout; (3) Any lease to the USFS will be for $1/year, which amount shall not be adjusted pursuant to Section 10 of this Agreement, provided the USFS will develop the facilities within the first five years following issuance of the New License and continue management of the facilities without cost to DPNA for the term of the New License in accordance with a USFS-prepared site development and management plan that is approved in writing by DPNA; and (4) Any lease will be for a term of years that shall coincide with the beginning and expiration of the New License, with the option by DPNA but not the obligation to renew once the initial lease term has expired. 3.0 Public Information Atireements 3.1 The Parties agree to the following public information improvements. 3.2 By signing this Agreement, the Parties recommend that the following proposed Article 403 be incorporated into the New License that the FERC is expected to issue for the Project: ARTICLE 403 The Licensee shall reimburse the United States Geological Survey (USGS) on an annual basis for its cost to maintain USGS Gage # 03505500 located downstream of the Nantahala Powerhouse near River Mile 11 on the Nantahala River (or a suitable replacement gage in this vicinity as determined by USGS) to enhance public access to information concerning river flow conditions. END OF PROPOSED FERC LICENSE ARTICLE 403 3.3 DPNA agrees to make the following specific public information improvements beginning in 2004 and to continue providing these public information improvements throughout the term of the New License for the Project: (1) Reimburse the United States Geological Survey (USGS) for the reactivation of USGS Gage # 03505500 in Nantahala Gorge (or a suitable replacement gage in this vicinity as determined by USGS) upon completion of such by the USGS, and reimburse USGS for ongoing maintenance of said gage; (2) Provide information in a timely manner on its website for Nantahala Lake (the Normal Operating Range, actual reservoir level, recent reservoir level history, near-term reservoir level projections and special messages), and recreational flows (generation and Nantahala River Bypassed Reach flow release schedules, a hotlink to USGS Gage # 03505500 in the Nantahala Gorge (or a suitable replacement gage in this vicinity as determined by USGS), and special messages). (3) Provide information in a timely manner on its telephone system for Nantahala Lake (actual reservoir level and special messages) and recreational flows (generation and Nantahala River Bypassed Reach flow release schedules and special messages); (4) Ensure that special messages on its website and telephone system include but not be limited to those conveying changes in reservoir levels and recreational is flows due to implementation of the Low Inflow Protocol and/or the Hydro Project Maintenance & Emergency Protocol; (5) Provide, in conjunction with the NCWRC, USFWS and USFS NCST_Settlement Agreement. ORIGINAL. doc 9 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT • (agencies to provide print ready copy), lake access recreational information signs and wildlife information kiosks for up to three sites (one for a site on USFS property and two for sites on DPNA-owned property) at a total DPNA cost not to exceed $30,000; (6) Work with the NCWRC and the USFS to provide river access recreational information including the dangers of rapidly rising water; and (7) Evaluate future communications technology advancements over the term of the New License and implement cost effective technologies that enhance the delivery of reservoir and recreation flow information. 3.4 DPNA agrees to consult with the North Carolina State Historic Preservation Officer (NCSHPO) and the Tribal Historic Preservation Officer (THPO) for the Eastern Band of Cherokee Indians (EBCI) to ensure adequate measures are in place to protect against the unauthorized release of any maps or any other information that provide the physical location of any cultural resource sites. 4.0 Minimum Flow Agreements for Bypassed Reaches 4.1 The Parties agree to the following minimum flows in bypassed reaches. • 4.2 By signing this Agreement, the Parties recommend that the following proposed Article 404 be incorporated into the New License that the FERC is expected to issue for the Project: ARTICLE 404 (A) The Licensee shall provide the following minimum flows in bypassed reaches: (1) From the Whiteoak Creek Penstock: a total of 8 cfs into Dicks Creek from November 1 through May 31 and, after installation of the second valve required by subparagraph (C)(2) of this Article, a total of 16 cfs into Dicks Creek from June 1 through October 31; and (2) From the Whiteoak Creek Diversion Dam after installation of the minimum flow device required by subparagraph (C)(3) of this Article, 8 cfs or the inflow into Whiteoak Creek Pond, whichever is less, into Whiteoak Creek at the base of the dam from January 1 through December 31. (B) The Licensee shall continue to maintain Dicks Creek as free flowing with outflow from the base of Dicks Creek Diversion Dam being equal to inflow into Dicks Creek Pond. • (C) The Licensee shall within six months following its acceptance of this license, consult with the NCWRC, NCDWR, NCDWQ, USFWS and the USFS and file a plan ("Minimum Flow Plan") for Commission approval to modify project facilities to: (1) Maintain the existing minimum flow valve capable of releasing up to 8 cfs, as calibrated and metered at the valve, from the Whiteoak Creek Penstock into Dicks Creek; (2) Install an additional minimum flow valve capable of releasing up to 8 cfs, as calibrated and metered at the valve, from the Whiteoak Creek Penstock into Dicks Creek; and (3) Install a minimum flow device capable of releasing up to eight cfs, as calibrated and metered at NC ST-Settlement-Agreement. ORIGINAL. doc 10 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT • the device, from the Whiteoak Creek Diversion Dam into Whiteoak Creek. By February 28, 2006 or within one year following Commission approval of such plan, whichever comes later, the Licensee shall complete the modifications of project facilities identified in the plan and begin providing the minimum flows as specified in this Article. (D) The Licensee may temporarily vary from the minimum flows identified in Paragraph (A) if required by conditions beyond the Licensee's control or by operating emergencies or maintenance needs as defined in Attachments B and C. Such temporary variances shall be in accordance with the Low Inflow Protocol or the Hydro Project Maintenance & Emergency Protocol, incorporated into this license as Attachments B and C, respectively. (E) The Licensee will calibrate the meters used to monitor minimum flows within 60 days following installation of the additional minimum flow valve and device identified in this Article and at least once every two years thereafter. • END OF PROPOSED FERC LICENSE ARTICLE 404 4.3 The Parties agree that DPNA will continue providing each minimum flow for each release point as specified by the current license, even after expiration of the current license, until the new minimum flow, pursuant to the New License, for any specific release point is required to be implemented under terms of the New License. 5.0 Recreation Flow Agreements 5.1 The Parties agree to the following recreational releases and related scheduling and communication initiatives for the Nantahala River tailrace and bypassed reach. 5.2 By signing this Agreement, the Parties recommend that the following proposed Article 405, Article 406 and Article 407 be incorporated into the New License that the FERC is expected to issue for the Project: ARTICLE 405 Beginning on February 28, 2006 or within one year following its acceptance of this license, whichever is later and except for periods of temporary variance as noted herein, the Licensee shall: (A) Operate the Nantahala Powerhouse to provide during the times set forth below ("Normal Generation Schedule to Support Recreation") instantaneous releases equal to or greater than the flow at which the project produces power most efficiently: LJ Period Schedule 2" Monday in March through March 31 10:00 am to 3:00 pm, 7 days per week April 10:00 am to 4:00 m, 7 days per NCST_Settlement_Agreement.ORIGINAL. doc 11 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT • 0 week May through Labor Day, except as noted below. 9:00 am to 5:00 pm, 7 days per week The Saturday & Sunday immediately preceding 9:00 am to 6:00 pm Memorial Da The Saturday & Sunday immediately preceding Labor 9:00 am to 6:00 pm Da September after Labor Day (Sunday through Friday) 10:00 am to 4:00 pm, 6 days per week September after Labor Day (Saturday) 9:00 am to 5:00 pm, 1 day per week October (Sunday through Friday) 10:00 am to 3:00 pm, 6 days per week October (Saturday) 9:00 am to 5:00 pm, 1 day per week (B) Provided the sponsoring or requesting organizations have consulted with the Nantahala Gorge Association (NGA) and have integrated their needs with the Normal Generation Schedule to Support Recreation as much as possible, operate the Nantahala Powerhouse to provide up to 70 hours per calendar year of additional recreational releases from generation at or above the best efficiency flow to support major whitewater races and consider on a case-by-case basis additional recreational releases from generation to support other special events. (C) Provided the sponsoring or requesting organizations have consulted with the Nantahala Gorge Association (NGA) and have integrated their needs with the Normal Generation Schedule to Support Recreation as much as possible, consider on a case-by- case basis requests to temporarily alter the Normal Generation Schedule to Support Recreation for special purposes. The Licensee shall consider requests that would shift the hours of generation to different times or reduce the total hours of releases to conserve the available water supply, but shall not consider requests that would add additional hours to the Normal Generation Schedule to Support Recreation for the month. (D) The Licensee may temporarily vary from the recreational releases from the Nantahala Powerhouse as identified above if required by conditions beyond the Licensee's control or by operating emergencies or maintenance needs as defined in Attachments B and C. Such temporary variances shall be in accordance with the Low Inflow Protocol or the Hydro Project Maintenance & Emergency Protocol, incorporated into this license as Attachments B and C, respectively. END OF PROPOSED FERC LICENSE ARTICLE 405 ARTICLE 406 0 (A) Beginning at the later of (1) on February 28, 2006, (2)(a) upon submittal to the Licensee of a written and complete traffic management plan developed by the USFS and NCST_Settlement_Agreement.ORIGINAL.doc 12 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT (b) completion of construction of the improved parking areas immediately above and below the Cascades section near River Mile 16.5 on the Nantahala River Bypassed Reach, or (3) within one year following its acceptance of this license, the Licensee shall provide the following recreational flow schedule using a Tainter Gate at Nantahala Dam, except during periods of temporary variance as noted herein. The target flows and times are for flows and flow arrival times immediately below the confluence of Whiteoak Creek with the Nantahala River. Actual release amounts from the Tainter gates need to be large enough that when combined with other tributary and accretion flows, the total is at or above the approximate target flowrates. • When Dates Targe t Flow Hrs Times f s One Spring 250 6 10 am to Saturday One Weekend Between 4 m One Spring April 15 and 30 350 6 10 am to Sunda 4 m 250 3 4 pm to 7 m 250 3 4 pm to 7 Four Summer Between Pin Afternoons June 15 and August 31 250 3 4 pm to 7 Pin 250 3 4 pm to 7 m 300 7 10 am to One Fall Saturday One Weekend 5 pm Between September 15 425 5 10 am to One Fall Sunday and 30 250 2 3 pm (These flows are to occur 3 pm to 5 as a single event m The actual release dates shall be as determined annually by the interested parties per Article 407 below. (B) The Licensee may temporarily vary from the recreational releases from Nantahala Dam as identified above if required by conditions beyond the Licensee's control or by operating emergencies or maintenance needs as defined in Attachments B and C. Such temporary variances shall be in accordance with the Low Inflow Protocol or the Hydro Project Maintenance & Emergency Protocol, incorporated into this license as Attachments B and C, respectively. END OF PROPOSED FERC LICENSE ARTICLE 406 • ARTICLE 407 NCST_Settlement_Agreement.ORIGINAL.doc 13 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT is To evaluate and enhance the scheduling of recreational flow releases, the Licensee shall: (A) In October of each year of the license term, convene a recreation schedule planning meeting with the interested parties to define the recreation flow schedule for the next calendar year. (B) In October immediately following the first five full recreation seasons under the requirements of this license, convene a meeting with the interested parties to evaluate the recreational releases (both from the Nantahala Powerhouse and the Nantahala Dam) over the previous five years and to identify potential mutually agreeable improvements. END OF PROPOSED FERC LICENSE ARTICLE 407 5.3 During the first two years of recreation flow releases in the Nantahala River Bypassed Reach, the USFS, NCWRC, NCDWR and the USFWS will monitor the existing fishery in the Nantahala River Bypassed Reach and identify any significant adverse impacts to fisheries caused by these recreation flow releases. In October after the first and second seasons of releases, DPNA will convene a meeting with AW, CCC, NGA, TU, USFS, NCWRC, USFWS, and NCDWR to discuss any proposed changes that are based on the monitoring results. Notwithstanding Paragraph 17.3, if DPNA, AW, CCC, NGA, TU, USFS, NCWRC, NCDWR and the USFWS all agree in writing to permanent schedule changes, the changes will take effect as agreed by the aforementioned Parties unless FERC approval is required, otherwise DPNA shall develop and submit to FERC a request in whatever form is necessary to effect such change and the change will take effect according to the FERC approval. No Party shall request a modification of the recreation flow release schedule that would change the total number of hours per month (for generation releases) or per calendar year (for Tainter gate releases) at the approximate target flows. 5.4 The Parties also agree that: (1) DPNA will continue recreation flow releases in accordance with the current license until the New License becomes effective; (2) For the purposes of the recreation flow schedule planning meetings identified in the proposed New License Article 407 above, the "interested parties" will be notified in advance of the meetings and in addition to DPNA, will at least include the NCWRC, NCDWR, USFWS, USFS, TU, AW, NGA, NRC, CCC, Georgia Canoe Association, Bartram Trail Association and a representative of a Nantahala Lake homeowners association; (3) DPNA will begin hosting the annual recreation schedule planning meeting in October 2004; (4) Notwithstanding Paragraph 17.3, if all Parties present at an annual recreation schedule planning meeting agree in writing to permanent schedule changes, the changes will take effect as agreed by the aforementioned Parties unless FERC approval is required, otherwise DPNA shall develop and submit to FERC a request in whatever form is necessary to effect such change and the change will take effect according to the FERC approval. No Party may request a modification of the recreation flow release schedule that would increase the total number of hours per month (for generation releases) or per calendar year (for Tainter gate releases) at the appropriate target flows; (5) All organizations sponsoring whitewater races or special events must consult with the NGA to coordinate race schedules with the Normal Generation Schedule to Support Recreation as much as possible prior to making a request to DPNA for additional hours of release; (6) Race/special event sponsors must also hold NCST_Settlement_Agreement.ORIGINAL.doc 14 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT the required permits from the USFS; and (7) DPNA will continue providing an employee to serve as a primary point of contact for recreation issues and to ensure continued effective communications with businesses and the general public that use the river sections that have flows affected by the DPNA Hydro Projects. 6.0 Other Multi-Proiect Resource Enhancement Agreements 6.1 The Parties agree to the following resource enhancement initiatives that mitigate for various impacts of the Project as well as various impacts at the other DPNA Hydro Projects. 6.2 DPNA shall provide the following support to the Dillsboro STEPS (Small Town Enhancement Planning Strategy) Initiative: (1) Up to 200 hours of labor supplied by DPNA staff for the period June 2003 through December 2004 to help implement the initiative; (2) Work with the Town of Dillsboro and other partners to develop a brief written history of hydropower in western North Carolina, particularly in the Tuckasegee and Nantahala River Basins by December 31, 2004; and (3) Provide $50,000 to the Town to help implement DPNA-selected elements of the STEPS initiative. 6.3 The Parties acknowledge that DPNA worked with the USFWS, NCDWR, NCDWQ, NCWRC, the North Carolina State Historic Preservation Officer (NCSHPO) and the EBCI and completed the necessary environmental, cultural resource, and engineering assessments regarding removal of Dillsboro Dam and potentially the Dillsboro Powerhouse (see Attachment F). These assessments evaluated the potential effects of dam removal on aquatic species; determined the extent of any cultural resources impacts, and considered the options for removing the powerhouse (i.e. removal, closure, or leave as-is). 6.4 DPNA believes based on the above mentioned assessments that the preferred alternative is full removal of Dillsboro Dam and closure of the Dillsboro Powerhouse. DPNA therefore agrees to: (1) File a license surrender application with the FERC by June 1, 2004 to decommission and remove Dillsboro Dam and close or otherwise dispose of the Dillsboro Powerhouse; (2) Continue operating the Dillsboro Project under the terms of the current license until dam removal begins; (3) Decommission the dam and powerhouse and complete dam removal and powerhouse closure / disposition within three years following the final FERC approval order; (4) Prepare, obtain FERC approval of and implement an environmental monitoring plan in association with the dam removal, including completion of the DPNA- implemented portions of any post-removal stream restoration and annual monitoring within two years following completion of dam removal; (5) Offer, for one year following completion of dam removal and powerhouse decommissioning and any DPNA portion of stream restoration and monitoring, to convey interest to all its property associated with the Dillsboro Project including land and improvements to the Town of Dillsboro; (6) If the Town of Dillsboro decides not to accept conveyance of the Dillsboro Project property, or if the Town of Dillsboro fails to complete conveyance in its allotted one-year period, whichever comes first, offer for one year to convey interest in all DPNA's property associated with the Dillsboro Project including land and improvements to Jackson County; (7) If neither local government wants the property or neither completes the property conveyance in the allotted time, dispose of its property as DPNA sees fit; NCST_Settlement_Agreement. ORIGINAL.doc 15 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT (8) Provide the Town of Dillsboro with a written accounting of the dam removal process, including a summary of expected benefits, within one year following completion of dam removal and powerhouse decommissioning and any DPNA portion of stream restoration and monitoring; (9) Seek cost-share funding and in-kind service partnerships with other entities to minimize DPNA's actual costs throughout the Dillsboro Dam Removal Project; (10) Contribute, within three years following completion of all DPNA work activities associated with the Dillsboro Dam Removal Project, an amount equal to DPNA's cost savings (the difference between the budgeted costs of $500,000 and the actual costs of dam demolition and powerhouse closure / disposition (including project management), any sediment removal and any stream restoration) up to $100,000, to (i) the Town of Dillsboro for additional investment in DPNA-selected elements of the STEPS initiative if the Town is a Party to this Settlement Agreement involving dam removal, or (ii) to the Riparian Habitat Enhancement Initiative (described in Paragraph 6.8 below) if the Town is not a Party to this Settlement Agreement. Any cost savings above $100,000 will be contributed to the Riparian Habitat Enhancement Initiative; and (11) Work closely with the Town of Dillsboro during the development of the Dillsboro Project license surrender application to evaluate creative partnership opportunities for cost-sharing the Dillsboro Dam Removal Project with other entities and incorporate any partnerships into the final license surrender application that are mutually agreeable to the Town and DPNA. 6.5 DPNA agrees to provide a one-time funding contribution, in-kind services or a combination of the two, at DPNA's option, not to exceed a total cost of $40,000 to support USFWS and NCWRC studies to determine the range and distribution of the sicklefin redhorse in the Little Tennessee, Hiwassee and Tuckasegee Rivers. The USFWS agrees to pursue a Candidate Conservation Agreement (CCA) for the sicklefin redhorse, if a CCA is mutually agreeable and beneficial to DPNA and the USFWS. If it desires, the NCWRC may also participate in the CCA for the sicklefin redhorse. 6.6 DPNA agrees to provide a one-time funding contribution, in-kind services or a combination of the two, at DPNA's option, not to exceed a total cost of $40,000 to support a project by the USFWS, NCWRC and the USFS to restore the native strain of brook trout to a selected stream in the vicinity of the Tennessee Creek Hydro Station. 6.7 DPNA agrees that within 1 to 15 years following its acceptance of the new licenses for the DPNA Hydro Projects, DPNA will provide Cherokee, Clay, Jackson, Macon and Swain counties $40,000 each to implement the DPNA-selected initiatives from a prioritized list identified by each county's Soil and Water Conservation District board as of July 1, 2005 that (1) make physical improvements that protect soil or water resources, (2) educate landowners or school children on proper soil or water conservation practices, and/or (3) improve soil or water conservation programs that affect lands that drain to any of the DPNA Hydro Projects or the river sections between the DPNA Hydro Projects and reservoirs belonging to the Tennessee Valley Authority (TVA). 6.8 DPNA agrees that within 1 to 15 years following its acceptance of the new licenses for the DPNA Hydro Projects, DPNA will provide a total of $200,000 for the purpose of • supporting DPNA-selected riparian habitat enhancement projects on lands that drain to any of the DPNA Hydro Projects or the river sections between the DPNA Hydro Projects and reservoirs NCST_Settlement_Agreement.ORIGINAL.doc 16 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT belonging to the Tennessee Valley Authority (TVA) where such projects (1) protect or enhance fish or wildlife habitat directly or (2) educate landowners or school children about the importance of healthy riparian areas for fish and wildlife habitat. DPNA will utilize the process outlined in Attachment I in selecting the projects to be funded. 6.9 DPNA agrees that by January 1, 2006 or within one year following its acceptance of the new licenses for the East Fork, West Fork and Nantahala projects, DPNA will purchase and convey the tract of land identified in Attachment J to the USFS. 6.10 For the purposes of Paragraphs 6.2, 6.4, 6.5, 6.6, 6.7, 6.8 and 6.9, the contribution amounts and land purchase required therein represent the total amount for which DPNA is liable pursuant to these paragraphs, notwithstanding that identical language may appear in the settlement agreement for the West Fork, Dillsboro and East Fork projects (FERC Project Nos. 2686, 2602 and 2698, respectively). For the purpose of construing these paragraphs, the Parties agree that the identical Paragraphs 6.2, 6.4, 6.5, 6.6, 6.7, 6.8 and 6.9 may have been included in the settlement agreement for FERC Project Nos. 2686, 2602 and 2698 for informational purposes and not to provide for cumulative obligations. 6.11 The Parties agree that the foregoing Other Multi-Project Resource Enhancement Agreements may be incorporated into the applicable new or subsequent licenses for the DPNA Hydro Projects. • 6.12 The Parties agree that if for any reason the Dillsboro Dam is not removed then: (1) The actions in Paragraphs 6.4 and 6.5 will no longer be required; (2) The limitations concerning fish passage and the use of Section 18 mandatory conditioning authority in Paragraph 14.5 will not apply; (3) The minimum flows in Paragraph 4.2, proposed Article 404 (A) will not apply and minimum flows for the Project will be re-evaluated by the USFS, USFWS, NCWRC, NCDWQ, NCDWR and DPNA, and these parties agree that the levels of said flows in proposed Article 404 (A) assumed the removal of Dillsboro Dam as habitat mitigation such that the failure to remove Dillsboro Dam may necessitate revisions of said flows to account for the failure of this mitigation; (4) DPNA will make any necessary revisions to its application for 401 Water Quality Certification and its FERC license application for the Project; (5) The NCDWQ and FERC should, following receipt of any revised applications, complete their reviews and issue their official decisions concerning the 401 Water Quality Certification and the New License for the Project, respectively; (6) By December 1, 2005 or within one year following DPNA acceptance of the subsequent license for the Dillsboro Project, whichever comes last, DPNA will construct a canoe / kayak portage around the Dillsboro Dam; and (7) Notwithstanding any other provisions of this Agreement, if for any reason the Dillsboro Dam is not removed as a direct result of the license surrender application to be filed by DPNA that is referenced in Paragraph 6.4 (1), any Party may advocate to FERC and any other entity and otherwise seek and require by whatever means, the imposition of minimum flows different from those specified in the paragraphs referred to in this section. 0 7.0 Shoreline Management Agreements NCST_Settlement_Agreement.ORIGINAL. doc 17 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT 7.1 The Parties agree to the following shoreline management initiatives. • 7.2 By signing this Agreement, the Parties recommend that the following proposed Article 408 be incorporated into the New License that the FERC is expected to issue for the Project: ARTICLE 408 The Licensee shall implement its Shoreline Management Program including the Shoreline Classification Maps, Lake Use Restrictions, Vegetation Management Requirements and the Shoreline Management Guidelines as filed with its license application to aid the Licensee in its lake use permitting program. END OF PROPOSED FERC LICENSE ARTICLE 408 7.3 The Parties acknowledge that the Shoreline Management Program including the Shoreline Classification Maps, Lake Use Restrictions, Vegetation Management Requirements and the Shoreline Management Guidelines (Attachment D), was implemented on July 1, 2003. 7.4 DPNA agrees, beginning in 2004, to provide support to others that may organize an annual "Reservoir-Wide Clean Up" on Nantahala Lake by removing collected trash during the week following the clean-up from pre-designated collection sites around the reservoir. 7.5 DPNA agrees, beginning in 2004, to consult with the North Carolina State Historic Preservation Officer (NCSHPO) and the Tribal Historic Preservation Officer (THPO) for the Eastern Band of Cherokee Indians (EBCI) to ensure adequate measures are in place to protect any maps or any other information that provides the physical location of any cultural resource sites from unauthorized release. 7.6 DPNA agrees to continue working with local law enforcement officials to address safety and security issues relative to Nantahala Lake. 8.0 Cultural Resource Agreements 8.1 The Parties agree to the following cultural resource initiatives. 8.2 By signing this Agreement, the Parties recommend that the FERC incorporate by means of a Programmatic Agreement, the following provisions: (A) To ensure adequate identification, protection and enhancement of cultural resources, DPNA, in consultation with the North Carolina State Historic Preservation Officer (NCSHPO), the Tribal Historic Preservation Officer (THPO) for the Eastern Band of Cherokee Indians (EBCI) and the USFS, where sites are located on or directly adjacent to USFS-owned properties, shall: 0 (1) Ensure adequate measures are in place to protect against the unauthorized NCST_Settlement Agreement. ORIGINAL. doc 18 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT release of any maps or any other information that provides the physical location of any cultural resource sites. (2) Within two years following its acceptance of the New License, develop and implement a Historic Properties Management Plan (HPMP) for the Nantahala Project. (3) During the first planned drawdown of Nantahala Lake that is scheduled to hold reservoir levels 60 ft or more below Normal Full Pond Elevation for at least 30 consecutive days, conduct additional archaeological studies of the two previously identified sites within the reservoir bed. DPNA will incorporate the results of any studies into the HPMP in consultation with the NCSHPO and the THPO and file a revised HPMP with the FERC for approval. 9.0 Sediment Management Agreements 9.1 The Parties agree to the following sediment management measures. 9.2 By signing this Agreement, the Parties recommend that the following proposed Article 409 be incorporated into the New License that the FERC is expected to issue for the Project: S ARTICLE 409 The Licensee shall operate the Nantahala Project so as to minimize the need to draw the reservoirs down to mechanically remove sediment. When sediment must be mechanically removed, or the reservoirs must be drawn down, the Licensee shall consult and reach agreement with the NCWRC, USFWS, USFS, NCDWR, USACOE (United States Army Corps of Engineers) and the NCDWQ concerning any reasonable and necessary measures to minimize the impact of the drawdown and sediment removal on the affected environment. This consultation and measures identification shall be completed prior to operating in any way that would be expected to allow sediment from upstream of the Nantahala Dam, Whiteoak Creek Diversion Dam, Diamond Valley Diversion Dam or Dicks Creek Diversion Dam to enter the downstream reaches. END OF PROPOSED FERC LICENSE ARTICLE 409 10.0 Monetary Value Agreements 10.1 The Parties agree to the following means of handling the monetary values stated in this Settlement Agreement. • 10.2 By signing this Agreement, the Parties recommend that the following proposed Article 410 be incorporated into the New License that the FERC is expected to issue for the NCST_Settlement Agreement. ORIGINAL. doc 19 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT • Project: ARTICLE 410 Unless otherwise indicated, all costs or payment amounts specified in dollars in Articles 401 through 409 of this license shall be deemed to be stated as of the year 2004, and the Licensee shall escalate such sums as of January 1 of each following year (starting in January 2005) according to the following formula: AD = D x NGDP IGDP WHERE: AD = Adjusted dollar amount as of January I of the year in which the adjustment is made. D = Dollar amount prior to adjustment. IGDP = GDP-IPD for the third quarter of the year before the previous adjustment date (or, in the case of the first adjustment, the third quarter of the year before the effective date of this license). NGDP = GDP-IPD for the third quarter of the year before the adjustment date. "GDP-IPD" is the value published for the Gross Domestic Product Implicit Price Deflator by the U.S. Department of Commerce, Bureau of Economic Analysis in the publication Survey of Current Business, Table 7.1 (being on the basis of 1987 = 100), in the third month following the end of the applicable quarter. If that index ceases to be published, any reasonably equivalent index published by the Bureau of Economic Analysis may be substituted. If the base year for GDP-IPD is changed or if publication of the index is discontinued, the Licensee shall promptly make adjustments or, if necessary, select an appropriate alternative index to achieve the same economic effect. END OF PROPOSED FERC LICENSE ARTICLE 410 10.3 The Parties agree that unless otherwise indicated, all costs or payment amounts specified in dollars in this Settlement Agreement shall be deemed to be stated as of the year 2004 and shall be escalated as outlined above in Paragraph 10.2. 11.0 Agreements Supporting Operational Flexibility for the Protect 11.1 The Parties agree to support operational flexibility for the Project as follows. 11.2 Except as permitted by Paragraph 14.3 or for emergency requests to support human health and safety, environmental health, or to avoid property damage during times of • emergency, the Parties agree during the term of the present relicensing process and during the term of the New License for the Project, and provided that DPNA has substantially complied NCST_Settlement_Agreement.ORIGINAL.doc 20 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT with all terms of this Settlement Agreement: (1) no Party shall make any requests for flow prescriptions of any kind, reservoir level restrictions of any kind, or operational restrictions of any kind other than those flow prescriptions, reservoir level restrictions, and operational restrictions prescribed in this Settlement Agreement; (2) All Parties and users of the Project should share the burden of low water availability in accordance with the Low Inflow Protocol (Attachment B); and (3) the Hydro Project Maintenance & Emergency Protocol (Attachment C) is an acceptable approach for handling temporary deviations from certain license conditions during abnormal situations. 11.3 The Parties agree that the foregoing Agreements Supporting Operational Flexibility for the Project should not be incorporated into the terms of the New License that the FERC is expected to issue. 12.0 Recreation Area Construction and/or Management Agreements 12.1 The Parties agree to the following cooperative maintenance/construction agreements for access areas and methods for considering future recreation facilities projects. 12.2 The Parties agree that: (1) the NCWRC will enter into an Access Area Maintenance Agreement with DPNA similar to the existing agreement on other Duke Power reservoirs (Attachment E provides a draft of the intended agreement) for the Big Choga and Rocky Branch access areas on Nantahala Lake and the one access area listed in Paragraph 2.2, proposed Article 402(A)(6) on the Nantahala River Bypassed Reach; (2) the USFS will operate and maintain the facilities that are located on land owned by the USFS; and (3) the USFS will operate and maintain the facilities that are located on land leased from DPNA in accordance with the lease agreement, which first requires a written plan and schedule for operation and maintenance by the USFS to be reviewed and approved by DPNA. 12.3 The Parties agree to the following with regard to access area construction: (1) the NCWRC will repair or rebuild, as needed, the facilities that it maintains to keep them in good condition, including getting any prior approvals from DPNA as may be required by the Access Area Maintenance Agreement; (2) the USFS will repair or rebuild, as needed the facilities located on its land to maintain them in good condition; and (3) the USFS will repair or rebuild, as needed, the facilities located on land leased from DPNA to keep them in good condition, including obtaining any prior approvals from DPNA as may be required by the lease agreement. 12.4 With regard to the addition of public recreational facilities beyond those facilities specifically identified in this Settlement Agreement, the Parties agree: (1) They will not request any additional facilities associated with the Project beyond those noted herein within the first 15 years of the New License; (2) Established mechanisms for monitoring growth in recreation facility demand (e.g. FERC Form 80, NC State Comprehensive Outdoor Recreation Plan, USFS recreation use monitoring) will serve as indicators of the need for additional facilities in the future; (3) DPNA may undertake recreation use and needs studies in its sole discretion to • evaluate future recreation needs that may be directly related to the Project and any studies decided upon by DPNA will be done in coordination with the USFS, NCDPR, and NCWRC; (4) NCST_Settlement Agreement.ORIGINAL.doc 21 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT DPNA may be requested by the other Parties to provide additional recreation facilities after the first 15 years of operation under the New License if justified by the necessary supporting data; and (5) When the need for additional recreation facilities directly related to the DPNA Hydro Projects has been demonstrated by the necessary supporting data and any necessary approvals are obtained, DPNA will arrange for the necessary improvements to be made with preference given to upgrading existing facilities that require no additional property rights and for which substantial cost-share funds are provided from other sources. 12.5 The Parties agree that the foregoing Recreation Area Construction and/or Management Agreements should not be incorporated into the terms of the New License that the FERC is expected to issue for the Project. 13.0 Agreements on Compliance Monitoring and Reporting Requirements 13.1 The Parties agree to the following compliance monitoring and reporting requirements for the Project. 13.2 The Parties agree to work cooperatively to design adequate compliance monitoring programs that do not cause undue burdens to DPNA. 13.3 By signing this Agreement, the Parties recommend that the following proposed Article 411 be incorporated into the New License that the FERC is expected to issue for the Project: • NCST_Settlement_Agreement.ORIGINAL.doc 22 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT • ARTICLE 411 (A) Beginning in the first calendar year after its acceptance of this license, the Licensee shall provide annually to the NCDWR, NCDWQ, NCWRC, USFWS and USFS and shall file with the Commission, not later than May 31, a report containing: (1) a table of the elevation of Nantahala Lake on a daily basis during the previous calendar year, (2) certification by the Licensee that the minimum flow release requirements of proposed Article 404 were met during the previous calendar year, (3) certification by the Licensee that the recreational flow release requirements from the Nantahala Powerhouse of proposed Article 405 were met during the previous calendar year, and (4) certification by the Licensee that the recreational flow release requirements from the Nantahala Dam of proposed Article 406 were met during the previous calendar year. (B) If during the previous calendar year there were any deviations of reservoir levels above or below the Normal Operating Range (proposed Article 401), the minimum flow release requirements (proposed Article 404), the recreational flow release requirements from the Nantahala Powerhouse (proposed Article 405), or the recreational flow release requirements from the Nantahala Dam (proposed Article 406), then the Licensee shall include in the report described in Paragraph (A) above an explanation of each incident during the previous calendar year when the deviations occurred, together with information sufficient to explain the reasons for each such incident. is END OF PROPOSED FERC LICENSE ARTICLE 411 14.0 Agreements Concerning New FERC License Conditions and 401 Water Quality Certification Conditions Consistent with this Agreement • 14.1 The Parties agree to the following limitations concerning opposition to a New License from the FERC and a 401 Water Quality Certification from the NCDWQ for the Project. 14.2 The Parties agree that with regard to statutory responsibilities of governmental agencies, nothing in this Settlement Agreement will prevent any governmental agency from acting as it must to comply with its mandated statutory responsibilities. 14.3 Nothing in this Settlement Agreement is intended to, or shall be construed to, affect or limit in any way the authority of the State of North Carolina pursuant to 33 U.S.C. § 1341, and related state statutes and rules to issue a water quality certification, or to alter a water quality certification, with whatever conditions the State of North Carolina determines should be included. Execution of this Settlement Agreement shall not be construed to confer on any Party any right to contest the water quality certification or any condition thereof, not already conferred under existing law, including Chapter 150B of the North Carolina General Statutes. 14.4 The Parties shall not request or support: (1) Any FERC license article or terms for any of the DPNA Hydro Projects that conflict with the requirements of this Settlement NCST_Settlement_Agreement.ORIGINAL.doc 23 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT Agreement or that add substantial additional burdens, costs, or risks to DPNA beyond those to which all Parties have herein agreed; and/or (2) Any FERC license re-openers of any kind for any of the DPNA Hydro Projects beyond those included in the appropriate FERC L-Form for the applicable project. 14.5 The Parties agree that provided Dillsboro Dam is removed: (1) For 20 years following issuance of the new licenses for the DPNA Hydro Projects, no Section 18 mandatory conditions (e.g. fishway prescriptions) beyond the standard reservations of prescriptive authority will be necessary or pursued at any of the DPNA Hydro Projects; (2) There will be no Section 18 mandatory conditions included in the new licenses for any of the DPNA Hydro Projects, beyond those absolutely essential to protect fish resources that are directly affected by operation of a DPNA Hydro Project; (3) If the USFWS determines that any Section 18 mandatory conditions are absolutely essential, it will impose the least cost alternative that ensures continued protection of fish resources; and (4) Any Section 18 mandatory conditions must not conflict with the conditions of this Settlement Agreement and will not add substantial additional burdens, costs or risks beyond those to which all Parties have herein agreed. 14.6 The Parties agree that: (1) There will be no Section 4e mandatory conditions (e.g. prescription of activities on a federal reservation) included in the new licenses for any of the DPNA Hydro Projects beyond those absolutely essential to protect National Forest resources that are directly affected by operation of a DPNA Hydro Project; (2) If the USFS determines that any Section 4e mandatory conditions are absolutely essential, it will impose the least cost alternative ® that ensures continued protection of National Forest resources; and (3) Any Section 4e mandatory conditions must not conflict with the conditions of this Settlement Agreement and will not add substantial additional burdens, costs or risks beyond those to which all Parties have herein agreed. 14.7 Except as permitted by Paragraph 14.3, the Parties shall not: (1) request or support any 401 Water Quality Certification conditions for any of the DPNA Hydro Projects that conflict with the conditions of this Settlement Agreement or that add substantial additional burdens, costs or risks to DPNA beyond those to which all Parties have herein agreed; (2) oppose any 401 Water Quality Certification conditions that are functionally identical to Sections 1 (reservoir levels), 4 (minimum flows), 6 (multi-purpose resource enhancements), 9 (sediment management), or 13 (compliance monitoring and reporting) of this Agreement; and/or (3) request or support any 401 Water Quality Certification conditions that are functionally identical, at least in part, to Sections 2, 3, 5, 7, 8, 10, 11, or 12 of this Agreement. 14.8 Within 30 days of the effective date of this Settlement Agreement, the Licensee shall prepare this Settlement Agreement for filing with FERC by circulating to all Parties for a period of 30 days (the "review period") a draft of the "Explanatory Statement" that is required by FERC rules. Within 21 days after obtaining the consent of all Parties to the Explanatory Statement, or after the 30-day review period has expired, whichever occurs first, the Licensee shall file this Settlement Agreement with FERC pursuant to Rule 602 of the Rules of Practice and Procedure, 18 C.F.R. § 385.602 (2003). 14.9 The Parties agree that the foregoing Agreements Concerning New FERC License NCST_Settlement_Agreement. ORIGINAL.doc 24 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT Conditions and 401 Water Quality Certification Conditions Consistent with this Agreement should not be incorporated into the terms of the new licenses that the FERC is expected to issue for the DPNA Hydro Projects. 15.0 Agreements on Action Steps upon an Inconsistent Act or Omission by a Jurisdictional Body and upon Breach 15.1 The Parties shall take the following steps if a Jurisdictional Body through any action or omission acts inconsistently with this Settlement Agreement or if any Party acts inconsistently with or breaches this Settlement Agreement. 15.2 If any Party believes that a Jurisdictional Body through any action or omission has acted inconsistently with this Settlement Agreement, it will notify DPNA of such inconsistency, pursuant to Paragraph 17.9, and: (1) DPNA shall notify the Parties, pursuant to Paragraph 17.9 of such Jurisdictional Body's action or omission; (2) DPNA shall work with the appropriate Jurisdictional Body to pursue an alternative that eliminates the inconsistency and that is acceptable to DPNA and to the Jurisdictional Body; and (3) DPNA will notify the Parties pursuant to Paragraph 17.9 to explain the proposed alternative and to inform the Parties of the action proposed by the Jurisdictional Body in response to the discussion of alternatives. If, after the notice by DPNA in subparagraph (3) above, any Party believes that the Jurisdictional Body's action or omission materially increases its overall burdens, costs, or risks, that Party may give notice of its intent to withdraw from this Settlement Agreement by serving notice on all other Parties pursuant to Paragraph 17.9. A Party may withdraw only pursuant to the procedures established in Paragraph 17.21, and only if, subject to the exceptions noted in Paragraph 17.21, the arbitrator determines that (1) the Jurisdictional Body's action is inconsistent with this Settlement Agreement; and (2) the Jurisdictional Body's act or omission materially increases the overall burdens, cost, or risks placed on the withdrawing Party. With respect to any such act or omission of a Jurisdictional Body, this Settlement Agreement will be deemed amended to be consistent with the Jurisdictional Body's act or omission when the time periods for all legal challenges and withdrawals from this Agreement have expired. 15.3 This Agreement shall not restrict in any way any Party's right to commence and fully litigate any administrative or judicial action or file a request for rehearing before FERC regarding any act or omission of a Jurisdictional Body that is alleged to be inconsistent with this Settlement Agreement. No Party may give notice to withdraw pursuant to Paragraph 15.2 until all administrative and judicial challenges regarding the issue over which the Party intends to withdraw have been finally resolved and until all time periods for further administrative or judicial review have expired. The omission of any Proposed License Article from any authorization (including the New License and the Water Quality Certification) shall not be deemed to be inconsistent with this Agreement, but any Party may petition the issuing agency to include such Article in such authorization and exhaust such administrative and related judicial processes, provided that nothing in this Settlement Agreement shall be construed to confer on any Party any right such as standing or aggrieved party status, required to challenge any action • of any governmental agency. NCST_Settlement_Agreement.ORIGINAL.doc 25 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT • 15.4 If any Party other than a Jurisdictional Body takes any action that is inconsistent with this Agreement or any Party is alleged to be in breach of this Agreement, DPNA shall immediately inform all Parties of the inconsistency or breach and consult with the Party to discuss the inconsistency or breach and reach a resolution satisfactory to DPNA and all interested Parties. Nothing in this Agreement shall prohibit any Party from seeking immediate relief from a court of competent jurisdiction to restrain an inconsistency or breach of this Agreement. 15.5 The Parties agree that the foregoing Agreements on Action Steps upon an Inconsistent Act or Omission by a Jurisdictional Body should not be incorporated into the terms of the new licenses that the FERC is expected to issue for the DPNA Hydro Projects. 16.0 Agreements on Full Consensus 16.1 The Parties agree that they have participated fully in the Stakeholder Process. 16.2 The Parties acknowledge that: (1) They have participated fully in the activities of the NCST and have a good understanding of the information contained herein; (2) This Settlement Agreement is developed from and is consistent with the intent of the Consensus Agreement document signed by the Parties on May 16, 2003; (3) They are in agreement with the entirety of this Settlement Agreement; (4) They understand that DPNA will file the Settlement • Agreement with the FERC and the NCDWQ for the agencies' consideration as they process the new licenses and any license surrender applications and the 401 Water Quality Certification applications for the DPNA Hydro Projects; and (5) DPNA will also request that the FERC and the NCDWQ act consistently with the terms of this Settlement Agreement in issuing their licenses, certifications, and orders for the DPNA Hydro Projects. 16.3 All Proposed License Articles are enforceable as a contract between and/or among the Parties to this Agreement at any time during the existence of this Agreement regardless of the inclusion of such Articles or similar requirements in the New License or the 401 Water Quality Certification, except to the extent that such Articles in this Agreement are preempted. 16.4 The Parties agree that the foregoing Agreements on Full Consensus should not be incorporated into the terms of the new licenses that the FERC is expected to issue for the DPNA Hydro Projects. 17.0 Miscellaneous Agreements 17.1 This Agreement is a compromise of many interests. The actions taken hereunder are not to be construed as any admission of liability on the part of any Party, or its agents, representatives, attorneys or employees, as to all of whom liability is expressly denied. Except in • the case of the licensing, permitting and license compliance for the DPNA Hydro Projects during the term of this Settlement Agreement, no Party shall be prejudiced, prevented, or estopped from NCST_Settlement Agreement. ORIGINAL. doc 26 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT • advocating before FERC or NCDENR any position inconsistent with those contained in this Settlement Agreement regarding the licensing, permitting and license compliance of any other hydro project. 17.2 The terms of this Agreement are contractual and not mere recitals. This Agreement, including any and all Attachments, constitutes the entire Settlement Agreement between DPNA and the other Parties with respect to the subject matter hereof. All prior contemporaneous or other oral or written statements, representations or agreements by or between DPNA and any of the other Parties with respect solely to operation or licensing of the subject hydro project(s) the subject matter hereof are superseded hereby. Nothing herein is intended to alter any valid easement, lease or permit previously granted or issued to any entity who is a Party to this Settlement Agreement. 17.3 Any modification or amendment of any provision of this Agreement, except for Attachments D, E, F and G, must be made in writing and signed by an authorized representative of each Party in order to become effective. 17.4 This Agreement may be executed in separate counterparts, with each counterpart deemed to be an original having the full force and effect thereof. This Agreement shall become effective upon execution by all Parties and the rights and obligations described herein shall be effective immediately except as otherwise provided. 17.5 The Parties shall comply with all applicable federal, state and local laws, codes, rules, regulations, and orders of any governmental authority, and, except as otherwise provided herein, will obtain, each at its own expense all permits and licenses pertaining to its obligations under this Settlement Agreement. Any Party who breaches, or otherwise fails to fulfill, any obligation of this Settlement Agreement (the Breaching Party) agrees to indemnify, defend at its expense and hold all other Parties (Non-Breaching Parties) harmless from and against any liability or damages, including paying the reasonable attorney's fees incurred by Non-Breaching Parties which results from the breach or failure to fulfill an obligation arising under this Settlement Agreement. This Agreement shall not be construed as a defense to or a limitation on civil or criminal liability in any action brought by any governmental entity to enforce any law and shall not limit the assessment or award of any fees, fines, penalties, remediation costs or similar liabilities in any such enforcement action. 17.6 The Parties agree that all scheduled completion dates set forth in this Agreement shall be met. Each Party, as soon as possible following first knowledge that it will not meet any completion date(s), shall notify all other Parties. 17.7 The Parties agree that neither DPNA, nor any other Party, shall be in breach of this Agreement to the extent that any delay or default in performance is due to causes beyond the reasonable control of the delayed or defaulting Party; provided, that the delayed or defaulting Party notifies the other Parties as soon as possible of. (i) the event; (ii) the expected duration of the event; and (iii) the delayed or defaulting Party's plan to mitigate the effects of the delay or • default. Such causes may include, but are not limited to, natural disasters, labor or civil disruption, acts of terrorism, the inability to secure any legal authorization from another entity NCST_Settlement_Agreement. ORIGINAL. doc 27 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT (e.g., a permit or license) where such legal authorization is a prerequisite or requirement for complying with the Agreement, or breakdown or failure of the Project works so long as such causes are beyond the reasonable control of the delayed or defaulting Party. 17.8 Except to the extent that federal law specifically preempts the application of state law, the laws of the State of North Carolina shall govern this Agreement. The Stakeholders agree that all actions and proceedings brought by any Party against any other Party must be litigated in courts located in the State of North Carolina. The Parties agree that such courts are convenient forums and irrevocably submit to the personal jurisdiction of such courts, except that the State of North Carolina does not by entering into this Settlement Agreement waive sovereign immunity and the State waives such defense, if at all, only to the extent required by law. 17.9 Each Party shall designate a representative for the receipt of notices. All notices required to be given under this Agreement shall be in writing and delivered by fax, personal delivery, email or U.S. mail using the contact information set forth in this Agreement and attached as Attachment G. Notices shall be effective upon receipt or such later date specified in the notice. A Party may change the contact information or the designated representative by notifying the other Parties of such change in accordance with the notice procedures in this Paragraph. 17.10 Should any provision of this Agreement or part hereof be held under any circumstances in any jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of any other provision of this Agreement or other part of such provision. If such invalidity or unenforceability materially increases the overall burdens, cost, or risks placed on any Party, that Party may withdraw from this Agreement pursuant to the procedures established in Paragraph 17.21, but only if, subject to the exceptions noted in Paragraph 17.21, the arbitrator determines that the invalidity or unenforceability materially increases the overall burdens, cost, or risks placed on the withdrawing Party. 17.11 No consent to or waiver of any provision of this Agreement shall be deemed a consent to or waiver of any other provision hereof, whether or not similar, or a continuing consent or waiver unless otherwise specifically provided. 17.12 The terms, phrases and abbreviations defined in Attachment H hereto, when used in this Settlement Agreement, shall have the meanings as defined in Attachment H. 17.13 This Settlement Agreement does not grant or affirm any property right, license or privilege in any waters or any right of use in any waters. This Settlement Agreement does not authorize any person to interfere with the riparian rights, littoral rights or water use rights of any other person. No person shall interpose this Settlement Agreement as a defense in any action respecting the determination of riparian or littoral rights or other water use rights. 17.14 Except as expressly provided for in this Settlement Agreement, all Parties are to bear their own costs of participating in the Settlement Agreement. NCST_Settlement Agreement.ORIGINAL.doc 28 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT 17.15 Unless otherwise noted, any reference to any statute, regulation or other document refers to the statute, regulation or document as it exists on the effective date of this Settlement Agreement. No changes to any document to which this Agreement refers are incorporated into this Agreement, unless explicitly provided for in this Agreement, or unless such change is made in accordance with Paragraph 17.3. 17.16 This Settlement Agreement shall not create any right in any individual or entity that is not a Party or in the public as a third-party beneficiary. This Settlement Agreement shall not be construed to authorize any such third party to maintain a suit in law or equity under this Settlement Agreement. 17.17 Nothing in this Settlement Agreement shall be construed as obligating any federal, state, or local agency to expend in any fiscal year any sum in excess of appropriations made by Congress or state or local legislatures or administratively allocated for the purpose of this Settlement Agreement for the fiscal year or to involve any federal, state, or local agency in any contract or obligations for the future expenditure of money in excess of such appropriations or allocations. 17.18 Nothing in this Agreement shall be construed as requiring or involving the delegation by any government agency to any other body of any authority entrusted to it by Congress or by the legislature of any state. 17.19 This Settlement Agreement shall apply to, and be binding on, the Parties and their successors and assigns. No change in ownership of or transfer of the licenses for any of the DPNA Hydro Projects shall in any way modify or otherwise affect any other Party's interests, rights, responsibilities, or obligations under this Settlement Agreement. Unless prohibited by applicable law, the licensee of the hydro project shall provide in any transaction for a change in ownership of or transfer of the current or new licenses for any of the DPNA Hydro Projects, that such new owner or licensee shall be bound by, and shall assume the rights and obligations of this Settlement Agreement upon completion of the change of ownership and, as applicable, approval by FERC of the license transfer. The licensee shall provide notice to the other Parties at least 90 days prior to completing such transfer of license. If any subsequent licensee or owner is not bound by the terms of this Agreement, each Party shall have the right to withdraw from this Agreement pursuant to the procedures established in Paragraph 17.21, but only if, subject to the exceptions noted in Paragraph 17.21, the arbitrator determines that the subsequent licensee or owner is not bound by the terms of this Agreement. 17.20 Damages at law are an inadequate remedy to redress any prospective or continuing breach of this Settlement Agreement and any Party shall be entitled to specific performance regarding such breach. As allowed by law, a Party shall be entitled to damages at law to redress past harms. This Paragraph shall not be construed to prohibit any Party from receiving money in settling any claim arising from a prospective or continuing breach. 17.21 Within 14 days of service of notice to withdraw, any other Party may exercise its right herein to arbitrate the withdrawing Party's right to withdraw by serving notice on all Parties, pursuant to Paragraph 17.9. The arbitrator shall be Steve Smutko, unless he is unable or NCST_Settlement_Agreement. ORIGINAL. doc 29 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT unwilling to serve, in which case the arbitrator will be selected in the sole discretion of the • American Arbitration Association. The arbitrator's decision shall be binding. Withdrawal shall be allowed only if the arbitrator rules in favor of the withdrawing Party on the relevant issues set forth elsewhere in this Settlement Agreement, and determines that the withdrawing Party has complied with the notice requirements. If no Party exercises its right to arbitrate withdrawal within 14 days of the service of notice by the withdrawing Party, then such withdrawal shall be final and effective. An effective withdrawal relieves the withdrawing Party of its performance obligations under this Settlement Agreement, except that a withdrawing Party is still bound by the provisions of Paragraphs 11.2 and 12.4. The costs of the arbitrator shall be shared equally by any Party seeking withdrawal and any Party requesting arbitration. Upon withdrawal of any Party, any other Party may withdraw pursuant to the procedures set forth in this Paragraph, but only if, subject to the exceptions noted in this Paragraph, the arbitrator determines that the Party's interests were substantially adversely affected by the withdrawal of another Party. Any right to withdraw is waived if the Party does not give notice of intent to withdraw within 60 days of the event that gave rise to the right to withdraw. 17.22 Each Party to this Agreement represents that it has the full legal authority to execute this Agreement and to bind the Party (principal) who it represents, and that by such representative's signature, such principal shall be bound upon full execution of this Agreement. 17.23 In the event, and at the time, that the Project ceases to be a federally licensed hydroelectric project, DPNA agrees: (1) To notify all Parties as soon as it is known that the Project may cease to be a federally licensed hydroelectric project and invite all interested Parties to any meetings and/or negotiations regarding such matters. (2) To negotiate in good faith with the North Carolina Wildlife Resources Commission, the North Carolina Department of Environment and Natural Resources, the United States Forest Service and any other interested Parties with the objective of ensuring continued public access to the Project reservoirs through the remaining period of the New License term for those properties owned by DPNA and designated for public access in the New License. (3) To enter into good faith negotiations with the North Carolina Wildlife Resources Commission, the North Carolina Department of Environment and Natural Resources, the United States Forest Service and any other interested Parties to explore options to protect the Project boundary, as defined in the New License. 17.24 This Settlement Agreement, and all obligations arising hereunder, shall terminate and be of no further force or effect upon the expiration or other termination of the Term of the New License issued to DPNA for the Nantahala Project (FERC Project No. 2692). S List of Attachments NCST_Settlement_Agreement.ORIGINAL. doc 30 Rev.: 10/23/03 NCST SETTLEMENT AGREEMENT • A. Consensus Agreement for the Nantahala Cooperative Stakeholder Team (NCST) B. Low Inflow Protocol (LIP) for the Nantahala Project C. Hydro Project Maintenance & Emergency Protocol (HPMEP) for the Nantahala Project D. Shoreline Management Program for the Nantahala Hydro Project including Shoreline Classification Maps, Lake Use Restrictions, Vegetation Management Requirements and the Shoreline Management Guidelines E. Draft Access Area Maintenance Agreement between DPNA and the NCWRC F. Dillsboro Dam Removal Environmental Assessment Executive Summary G. Designated Representatives of the Parties for Receipt of Notices H. Definition of Terms and Phrases and Listing of Abbreviations 1. Riparian Habitat Enhancement Fund • J. Description of the Conservation Tract • NCST_Settlement_Agreement.0 RIGINAL.doc 31 Rev.: 10/23/03 4,11 !IL.?,}iEa'.; i U • (` "1 t t'1.1 NI i.l`? 1 ??,(,{?? it t 71 V, A! j Colount • • N, }?!€?€ I}()€;1 }l( )?%?I (Ak" I Ise l;"III()'\,. `' ;???(I1t?rit?'?i E:e,?.rt•;a'rat??ts4c? F- L-1 • ,yt ?, I "A 6'! 1"tOI" I'.!?'.;'s( )Ieli,I?.11 do'. 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NA i.I:,,-)()tT( t;,I'iairnl?tn ?? r` f • is `> ? ?,? ??iS'iS.Il,?ai °t ?`t3'.'t,•?, t 1( ?+ t,? ?.3 iii+? • F;en, 1t11s l )irtvctx?r • 0 • • 0 kv G Psi rl?., Billiiz 0 z lIIW`,1 :1!_!J"!I?C1A1II)!III .?PVit • U `? 1 I „i! I 1 O K1 %; f N1 1 1 1 ?t, V1 11 I t1 11 1 A 1• \ it 1 Wtim-K 1'.v„ Aq, pv j" ; (i ; NCS'I SI=:'I'"I'LEMEN'l ACzItI:t''1 EN I kc!!Iollal 1?t3tC; ??I E • Ii,tiI(WI ?I " Attachment A - NCST Consensus Agreement • Purpose - Establish a consensus agreement for signature by the Primary Members of the Nantahala Cooperative Stakeholder Team at the joint meeting with the Tuckasegee Cooperative Stakeholder Team on May 16, 2003. Those primary members and the organizations they represent who agree in consensus will work toward conversion of the consensus agreement into a settlement agreement by September 15, 2003. 1. DPNA agrees to the following: A. Recreation (Rec) Facilities 1. Nantahala Lake a. Add a toilet, trash collection, lighting and a bank fishing area to both the Big Choga and Rocky Branch Access Areas.* (Tier 1**) b. Pave the parking lots at both the Big Choga and Rocky Branch Access Areas. (Tier 2**) c. Work with the United States Forest Service (USFS) and the North Carolina Division of Parks and Recreation (NCDPR) to further evaluate camping needs on the lake. If it is determined necessary, then upon completion, pay for the initial construction of boat-accessible-only, primitive, scattered camping sites on property owned by the USFS. One-time expense of up to $50,000. (Tier 1**) 40 d. Work with the North Carolina Wildlife Resources Commission (NCWRC), the USFS and the United States Fish & Wildlife Service (USFWS) to evaluate wildlife viewing opportunities at the following locations: (1) Big Choga Access Area, (2) Rocky Branch Access Area, or (3) property owned by the USFS adjoining the lake. Provide a summary by 8/1/03 of any significant viewing opportunities and the need, practicality and cost of providing a viewing platform at one of these three locations. If such a viewing platform is needed and can cost- effectively be constructed, then it will be added to the construction plan identified in Item A. La above (if it will be located at one of the access areas) or DPNA will pay for its construction once construction is completed (if it will be located on USFS-owned property). (Tier I**) 2. Nantahala River Bypass and Main Stem a. Expand Recreation Facilities Just Downstream of Nantahala Powerhouse 1) Lease and/or convey interest in 1 to 3 acres of DPNA-owned property to the USFS to expand the parking area at their existing public access at Rowlands Creek on Wayah Road. 2) Lease and/or convey interest in a portion (size TBD) of the DPNA-owned property near and including the DPNA-owned property that is presently being used as a commercial access launch site to the USFS. 3) For both Items 1) and 2) above: (a) Lease and/or convey only the portion of land required to house recreation facilities that will be installed within the Tier 1 ** project timeframe. (b) Decision on lease or conveyance will be made by DPNA once the USFS' conceptual • facilities plan is finalized, including review and incorporation of input from the Attachment A.NCST Consensus Agreement.doc Rev: Draft 10/15/2003 Attachment A - NCST Consensus Agreement Nantahala Gorge Association (NGA) and DPNA, and will consider the level of planned capital investment by the USFS. (c) Any lease to the USFS will begin and end with the new license to be issued by the Federal Energy Regulatory Commission (FERC), with option but not the obligation to renew. (d) Any lease to the USFS will be for $1/yr, provided that the USFS will develop and manage the facilities within the Tier I** project timeframe in accordance with a site development and management plan that is approved in writing by DPNA. (e) If it is determined that the on-lake campsites identified in Item A. Lc above are not needed, then provide up to $50,000 in funding to support site planning, surveying and/or facilities construction for the USFS facilities just downstream of Nantahala Powerhouse, provided construction will be completed within the Tier 1 ** project timeframe. (Potential additional partners - NCWRC, Southwestern Resource Conservation and Development (SWRC&D)) b. Construct a barrier-free fishing access area on DPNA-owned property located on the Nantahala River Bypass just upstream of its confluence with the power canal. (Tier I* *)(Potential partners - USFS, NCWRC, SWRC&D) c. Improve parking on USFS-owned property along the road in the upper Nantahala River section between Whiteoak Creek and the powerhouse (kayak put in/take out below the Cascades and parking for fishermen and boaters). (Tier 1 ** - Note that since initiating whitewater releases in the Nantahala River Bypass are contingent upon having adequate access facilities, this item will be a top priority in scheduling construction of the Tier 1 projects). (Potential partners - USFS, NCWRC, SWRC&D) d. Improve parking on USFS-owned property along the road in the upper Nantahala River section at the Cascades with 5 parking places and a viewing platform. (Tier 1** - Note that since initiating whitewater releases in the Nantahala River Bypass are contingent upon having adequate access facilities, this item will be a top priority in scheduling construction of the Tier I projects). (Potential partners - USFS, SWRC&D) e. Improve parking on USFS-owned property along Old River Road in the upper Nantahala River section at Slot Falls. (Tier I* *)(Potential partners - USFS, SWRC&D) f. Improve parking on USFS-owned property along Old River Road in the upper Nantahala River section above Whiteoak Creek at Cocktail Falls. (Tier 2**)(Potential partners - USFS, SWRC&D) g. Improve parking on USFS-owned property along Old River Road in the upper Nantahala River section at Whiteoak Creek. (Tier 2**)(Potential partners - USFS, SWRC&D) * (1) Pump-and-haul toilets will be made available only if there is sufficient property for installation and the required permits can be obtained, (2) Lighting will be provided if there is no charge for running the primary line to the site, (3) Cost-effective lighting will be designed with input from the USFWS and the NCWRC to minimize any negative impacts on fish and wildlife resources (potential examples include use of low pressure sodium bulbs with appropriate Attachment A.NCST Consensus Agreement.doc Rev: Draft 10/15/2003 Attachment A - NCST Consensus Agreement shielding), (4) Trash collection will be provided to support recreational use at this location only, • but may be discontinued if the site is used to dispose of household or other waste from off-site locations and (5) The bank fishing area will be land based with trail (if the site is suitable). ** For Tier 1 projects, construction will be completed within 5 years following issuance of the new FERC license for the Nantahala Project and closure of all legal challenge periods. Also, any construction of this type within the FERC project boundary must first be approved by the FERC and permits from other regulatory agencies may also be required. ** For Tier 2 projects, construction will be completed from 6 to 15 years following issuance of the new FERC license for the Nantahala Project and closure of all legal challenge periods. Also, any construction of this type within the FERC project boundary must first be approved by the FERC and permits from other regulatory agencies may also be required. B. Public Info 1. Reservoir information a. Add the following to the DPNA website - actual lake level readings, the Normal Operating Range, recent lake level histories and near-term lake level projections for Nantahala Lake and special messages. b. Actual lake levels for Nantahala Lake and special messages will be provided by the DPNA • telephone information line. c. Special messages concerning modifications to the lake level operating band will be communicated per the Low Inflow and Hydro Project Maintenance and Emergency Protocols. d. The above lake level information will be provided beginning in 2004. 2. Recreational flow information a. Generation and bypass release flow schedules for the Nantahala Project will be maintained on the DPNA telephone information line and website. b. Special messages concerning modifications to the generation and bypass release schedules will be communicated per the Low Inflow and Hydro Project Maintenance and Emergency Protocols. c. Establish a hotlink on the DPNA website to access the real-time surface water gages on the United States Geologic Survey (USGS) website that takes the user directly to the real-time data for USGS Gage # 03505500 in the Nantahala Gorge. d. The above recreational flow information will be provided beginning in 2004. • Attachment A.NCST Consensus Agreement.doc Rev: Draft 10/15/2003 Attachment A - NCST Consensus Agreement • 3. Gage reactivation a. Upon completion by the USGS, pay for reactivation and ongoing maintenance of USGS Gage # 03505500 in the Nantahala Gorge. (Potential additional partners - North Carolina Division of Water Resources (NCDWR), USFWS) b. Gage fully operational by 2004, provided USGS can complete reactivation by then. 4. Communications Technology Improvements a. DPNA will follow improvements in communication technology and infrastructure that may occur over the life of the next hydro project license and will make cost-effective enhancements to the delivery of reservoir and recreational flow information. 5. Other Recreation Information Improvements a. Establish a Communications Working Group from interested members of the NCST to evaluate the audiences and needs for additional recreation information relative to the Nantahala Project and to prepare the necessary communications tools. Potential examples include but are not limited to: 1) Signage at points of public access (e.g. show USFS and DPNA property boundaries, provide web addresses and telephone numbers, provide appropriate warnings, wildlife interpretive information, etc.) 2) A recreation brochure 3) A staff gage at the confluence of Whiteoak Creek with the Nantahala River to provide ® boaters, fishermen and DPNA operators with field indications of flowrates in the Nantahala River Bypass. 4) A wildlife checklist or poster. b. Focus effort primarily on improving existing communications tools and better public access to information that already exists. c. Working Group will conduct the evaluation and propose a schedule and cost-sharing plan by August 15, 2003. C. Lake Levels 1. Conventions and Definitions - All elevations listed below are relative to the top of the dam (including the flood gates, fuse plugs and flashboards where applicable), with 100.0 ft = Full Pond. Normal Minimum, Normal Maximum and Normal Target Elevations change on a daily basis. The elevations shown are for the I" day of the given month. Elevations for other days of the month are determined by linear interpolation. The Normal Target Elevation = the lake level that DPNA will endeavor in good faith to achieve, unless operating in the Low Inflow or Hydro Project Maintenance & Emergency Protocol. Since inflows vary significantly and outflow demands also vary, DPNA will not always be able to maintain actual lake levels at the Normal Target Elevations. As long as actual lake levels are within the Normal Operating Range and DPNA is not operating under the Low Inflow or Hydro Project Maintenance and Emergency Protocols, DPNA will be in compliance with any future settlement agreement, 401 Water Quality Certification and license requirements with regard to lake levels. Attachment A.NCST Consensus Agreement.doc Rev: Draft 10/15/2003 4 Attachment A - NCST Consensus Agreement • 2. Nantahala Lake - Maintain the following Normal Operating Range: Month Normal Minimum Elevation (ft) Normal Target Elevation (ft) Normal Maximum Elevation (ft) Jan 73 78 83 Feb 76 83 88 Mar 78 88 93 Apr 85 93 98 May 93 97 99.5 Jun 93 97 99.5 Jul 93 97 99.5 Au 91 96 99.5 Se 88 93 98 Oct 83 88 93 Nov 78 83 88 Dec 73 78 83 3. Whiteoak, Dicks and Diamond Valley Ponds - No lake level limitations. 4. Any changes from current operation to begin in 2004. 0 D. Minimum Flows in Bypass Reaches 1. Nantahala River Bypass a. Minimum Flow Valve #1 - Maintain the existing minimum flow valve capable of releasing up to 8 cfs from the Whiteoak Penstock into Dicks Creek to support flows in the Nantahala River Bypass. b. Minimum Flow Valve #2 - Install an additional minimum flow valve capable of releasing up to 8 cfs from the Whiteoak Penstock into Dicks Creek to support flows in the Nantahala River Bypass. c. From the 2 minimum flow valves located on the Whiteoak Penstock, provide a total of the following releases into Dicks Creek to support flows in the Nantahala River Bypass: 1) From November 1 through May 31, 8 cfs. 2) From June 1 through October 31, 16 cfs. 2. Whiteoak Creek Bypass a. Whiteoak Diversion Dam - Provide 8 cfs or inflow to Whiteoak Pond, whichever is less, from the Whiteoak Diversion Dam into the Whiteoak Creek Bypass from January 1 through • December 31. Attachment A.NCST Consensus Agreement.doc Rev: Draft 10/15/2003 5 Attachment A - NCST Consensus Agreement 3. Implement additional minimum flows in the bypasses in 2006, or within 1 year following • receipt of FERC approval to modify project facilities, whichever comes last. E. Recreation Flows 1. Normal Generation Schedule to Support Recreation - Establish recreational releases on the main stem of the Nantahala River in accordance with the following schedule: a. 2°d Monday in March through March 31 - 10:00 am to 3:00 pm, seven days per week b. April- 10:00 am to 4:00 pm, seven days per week c. May through Labor Day - 9:00 am to 5:00 pm, seven days per week, plus provide one additional hour to the schedule (i.e. 9:00 am to 6:00 pm) on both the Saturday and Sunday before Memorial Day and Labor Day d. September after Labor Day - 10:00 am to 4:00 pm Sunday through Friday, 9:00 am to 5:00 pm Saturday e. October- 10:00 am to 3:00 pm Sunday through Friday and 9:00 am to 5:00 pm Saturday. 2. Whitewater Races - Establish recreational releases on the main stem of the Nantahala River to support National, Southeastern Regional or State Level Whitewater Races. Provide scheduled generation releases for recreation purposes on the Nantahala River for up to 70 hrs per year in addition to the above Normal Generation Schedule to Support Recreation for major whitewater races, including training/practice and the event. To the maximum practical extent, releases will be integrated with the Normal Generation Schedule to Support Recreation as noted in Item 1 above so that additional release hours beyond the normal release schedule are not needed. Race events may be sponsored by the Nantahala Racing Club (NRC), the Carolina Canoe Club (CCC), the Georgia Canoe Association (GCA), the American Canoe Association (ACA) or other paddlesport organizations. The sponsoring organization will consult with the NGA President to coordinate their activities as much as possible prior to making a request to DPNA for releases for a whitewater race. The sponsoring organization is also required to consult with the USFS and obtain any necessary permits before conducting the race. 3. Other Special Events - Other non-race requests for special generation releases that require additional generation hours above the total number of hours in any given month in the Normal Generation Schedule to Support Recreation as noted in Item 1 above will be handled on a case-by- case basis. To the maximum practical extent, releases will be integrated with the normal release schedule so that additional release hours beyond the normal release schedule are not needed. The sponsoring organization is required to consult with the NGA President to coordinate their activities as much as possible prior to making a special request to DPNA. The sponsoring organization is also required to consult with the USFS and obtain any necessary permits before conducting the event. 4. Alterations to the Normal Generation Schedule to Support Recreation - DPNA will consider • requests on a case-by-case basis to temporarily alter the Normal Generation Schedule to Support Attachment A.NCST Consensus Agreement.doc Rev: Draft 10/15/2003 Attachment A - NCST Consensus Agreement Recreation as noted in Item 1 above. Such alteration requests may shift the hours around or reduce the total hours of releases to conserve the available water supply, but will not add additional hours to the normal total number of hours scheduled for the given month. The requesting organization is required to consult with the NGA President to coordinate their activities as much as possible prior to making a request to DPNA. 5. All main stem recreational releases are at or above the best efficiency flow for the Nantahala Hydro Unit. 6. Establish recreation flows in the Nantahala River Bypass using a Tainter Gate at Nantahala Dam according to the following schedule: a. Spring Weekend - Release water for six hours per day for one weekend (Saturday and Sunday) per year, scheduled for the last weekend in April. Target flowrates will be approximately 250 cfs on Saturday and approximately 350 cfs on Sunday. Releases will be timed to reach the confluence of Whiteoak Creek with the Nantahala River (i.e. approximately 5.8 river miles downstream of Nantahala Dam) at approximately 10:00 am. b. Summer Afternoons - Provide four total afternoon releases per year for 3 hrs each at a target flowrate of approximately 250 cfs, scheduled between June 15 and August 31. Releases will be timed to reach the confluence of Whiteoak Creek with the Nantahala River (i.e. approximately 5.8 river miles downstream of Nantahala Dam) at approximately 4:00 pm. c. Fall Weekend - Release water for seven hours per day for one weekend per year, scheduled between September 15 and September 30. Releases will be for seven hours at a target flowrate of approximately 300 cfs on Saturday; and five hours at a target flowrate of approximately 425 cfs followed by two hours at a target flowrate of approximately 250 cfs on Sunday. Initial releases each day will be timed to reach the confluence of Whiteoak Creek with the Nantahala River (i.e. approximately 5.8 river miles downstream of Nantahala Dam) at approximately 10:00 am. d. Target Flowrates - The target flowrates stated above are for flowrates immediately below the confluence of Whiteoak Creek with the Nantahala River (i.e. approximately 5.8 river miles downstream of Nantahala Dam). Actual release amounts from the Tainter gates need to be large enough that when combined with other tributary and accretion flows, the total is as close as possible to the target flowrates. e. Initial Fishery Monitoring - During the first two years of these bypass releases, the USFS, NCWRC, NCDWR and USFWS will monitor the existing fishery in the bypass, identify any significant fisheries issues that may be caused by these bypass releases and will cooperatively discuss any needed schedule changes with DPNA, the American Whitewater Affiliation, the NGA President and Trout Unlimited. DPNA will convene meetings among these parties each October following the first and second full seasons of these bypass releases. Permanent schedule changes will only be made if all parties agree that changes are necessary. The total number of hours at the approximate target flowrates will not change as a result of this monitoring and these cooperative scheduling discussions. • Attachment A.NCST Consensus Agreement.doc Rev: Draft 10/15/2003 Attachment A - NCST Consensus Agreement 7. Annual Recreation Planning Meeting - each October beginning in 2004, DPNA will convene a meeting of the following parties to discuss recreation flow planning for the next calendar year: NCWRC, NCDWR, USFWS, USFS, American Whitewater Affiliation (AW), NGA, NRC, CCC, GCA, ACA, Trout Unlimited (TU) and any other known entities desiring special releases from the Nantahala Project during the coming year, a representative from a Nantahala Lake homeowners' association and the Bartram Trail Association. 8. Ongoing DPNA Contact for Recreation Flow Issues - DPNA will continue to provide an employee, preferably with an office located in the DPNA service area, to serve as a primary point of contact for day-to-day, recreation flow-related issues. The employee will have additional duties, but one of the employee's priorities will be ensuring continued effective communications with businesses and the general public that use the river sections that have flows affected by DPNA hydro stations. 9. Evaluation of First 5 Years - in October immediately following the first 5 full recreation seasons of operation under the requirements of the new FERC license, DPNA will convene a meeting of the following parties to discuss any lessons-learned from the previous 5 years of operation and to identify any potential improvements that all the parties can agree upon: NCWRC, NCDWR, USFWS, USFS, AW, NGA, NRC, CCC, TU and any other known entities desiring special releases from the Nantahala Project, plus a representative from a lake homeowners' association if an association desires. 10. Implement the new recreation flow schedule on the main stem of the Nantahala River in 2006, with DPNA continuing recreation flow releases in accordance with the existing license and settlement agreement until then. 11. Implement the recreation flow releases in the Nantahala River Bypass in 2006, or upon completion of the following, whichever comes last: a. A traffic management plan is developed by the USFS with input from other local authorities. b. Construction of the improved parking areas immediately above and below the Cascades section is complete (i.e. the facilities identified in Items A.2.c and A.2.d above). F. Resource Enhancement Initiatives Note - these initiatives also encompass other DPNA hydro projects beyond just the areas covered by this stakeholder team. 1. Dillsboro STEPS (Small Town Enhancement Planning Strategy) Initiative a. Continue working with the Town of Dillsboro to complete the conceptual plan for their STEPS Initiative by 5/30/03. b. Continue to provide labor support, up to a maximum of 200 total man-hours from June 2003 through December 2004, from DPNA's selected staff members to the Town of Dillsboro to • help with implementation of the STEPS Initiative. Support time will typically be provided on a monthly basis. Attachment A.NCST Consensus Agreement.doc Rev: Draft 10/15/2003 Attachment A - NCST Consensus Agreement 0c. Work with the Town of Dillsboro and other partners to develop a brief written history of hydropower in western NC (particularly on the Tuckasegee and Nantahala Rivers). A written summary will be provided to the town by 12/31/04. d. Provide funding to the Town of Dillsboro, up to a maximum DPNA contribution of $50,000, to support implementation of DPNA-selected elements of the town's STEPS Initiative. Funding will be provided to the town when needed to support the DPNA-selected elements and could come as early as 2004. 2. Dillsboro Dam Removal & Powerhouse Disposition a. File a Dillsboro Project license application with the FERC and the supporting 401 Water Quality Certification application with the North Carolina Division of Water Quality (NCDWQ) by 7/31/03. Advise both the FERC and the NCDWQ of the potential to surrender the license and request that the NCDWQ not issue a 401 Water Quality Certification and the FERC not issue an order on the license application for the Dillsboro Project until the potential license surrender is resolved. b. Work with the USFWS, NCDWR, NCDWQ and the NCWRC to complete the necessary environmental and engineering assessments. In addition to evaluating potential effects on aquatic species, the assessments will consider options for removing the powerhouse, converting the powerhouse to another use (e.g. museum), or simply leaving the powerhouse in as-is condition. DPNA will then use the results of these assessments to make a preliminary determination by 9/1/03 if it believes Dillsboro Dam removal can be done in a safe, environmentally beneficial and cost-effective manner and to determine the disposition of the powerhouse. Assuming the review outlined in Item F.2.b above indicates the dam can be removed safely, cost-effectively and in an environmentally beneficial manner, file a revised 401 Water Quality Certification application with the NCDWQ and file an application with the FERC to surrender the Dillsboro Project license, decommission Dillsboro Powerhouse, remove Dillsboro Dam and pursue the selected disposition path for the powerhouse as follows: 1) On the same day, file both a revised 401 Water Quality Certification application and a request to withdraw the previously filed 401 Water Quality Certification application for the Dillsboro Project with the NCDWQ. The revised application will support dam removal (also removal of the powerhouse if that disposition path is chosen). Both filings will be completed by 6/1/04. 2) File a license surrender application with the FERC by 6/1/04. 3) Assuming NCDWQ approval and FERC approval to surrender the license and remove the dam (and possibly the powerhouse) are received (could be received as early as 6/1/05) and the approvals do not add any significant costs, burdens or risks beyond those contemplated in DPNA's license surrender and revised 401 applications, DPNA will decommission the • powerhouse, complete dam removal and complete the selected powerhouse disposition path Attachment A.NCST Consensus Agreement.doc Rev: Draft 10/15/2003 Attachment A - NCST Consensus Agreement within 3 years following the final FERC approval order and the closure of all legal • challenge periods. 4) Complete any DPNA portion of the post-removal stream remediation and monitoring within 2 years following completion of dam removal. 5) Continue to operate the Dillsboro Project under the terms of the existing license until powerhouse decommissioning occurs. 6) Within 1 year following completion of dam removal and powerhouse decommissioning / disposition (including any necessary stream restoration and the DPNA portion of any post- removal monitoring), DPNA will: a) Provide Local Governments the First Opportunity - Offer to convey interest in all its property associated with the Dillsboro Project, including land and any remaining structurally sound improvements, to the Town of Dillsboro. Allow a one-year window for the town to complete the conveyance. If the town doesn't want the property or is unable to complete the conveyance within the specified timeframe, the same offer will then be extended to Jackson County. b) Free Up the Property if the Local Governments aren't Interested - If neither the Town of Dillsboro nor Jackson County complete the property conveyance within the specified timeframes, then DPNA may do with its property as it sees fit. 7) Within 1 year following completion of dam removal and powerhouse decommissioning / disposition (including any necessary stream restoration and the DPNA portion of any post- removal monitoring), DPNA will provide the Town of Dillsboro with a written accounting of the dam removal process, including a summary of the expected benefits. 8) Sharing the Benefits of Dam Removal Partnerships - DPNA has established a cost estimate of $500,000 for the total Dillsboro Dam Removal/Powerhouse Disposition effort (including all steps from the environmental and engineering assessments planned for summer 2003, through completion of any DPNA portion of the post-removal stream remediation and monitoring). DPNA will pursue cost-share funding and in-kind service partnerships with other entities and will track DPNA's actual costs throughout the project. Provided that the Town of Dillsboro is a party to any future settlement agreement involving dam removal, then DPNA will share the benefits of any cost savings it achieves with the town for additional investment in the town's STEPS Initiative. DPNA will contribute an amount equal to DPNA's actual savings (compared to its total $500,000 expected cost), up to a maximum DPNA contribution of $100,000, to the town for additional investment in DPNA- selected elements of the town's STEPS Initiative. If the town is not a party to any future settlement agreement, then any DPNA cost savings will be added to the Riparian Habitat Enhancement initiative outlined below. Also, any DPNA cost savings above the $100,000 contribution to the town of Dillsboro will be added to the Riparian Habitat Enhancement initiative outlined below. (Note: The $100,000 potential contribution to the Town of Dillsboro is in addition to the $50,000 contribution identified in Item F. Ld above). All Attachment A.NCST Consensus Agreement.doc Rev: Draft 10/15/2003 10 Attachment A - NCST Consensus Agreement DPNA contributions will be made within 3 years following completion of all DPNA work activities associated with the Dillsboro Dam Removal/Powerhouse Disposition effort. d. If DPNA decides that the dam should not be removed, then: 1) The activities under Item F.2.c. above will not be required. 2) The limitations in this document concerning fish passage and Section 18 mandatory conditioning authority under the Federal Power Act would not apply and the fish passage issue would be re-evaluated by the USFWS, the NCWRC and DPNA on the DPNA hydro projects. 3) Any limitations in this document concerning minimum flows in the Nantahala River Bypass, the West Fork Bypass and in the Tanassee Creek Bypass (Bonas Defeat) would not apply. The minimum flow issue in these three locations would be re-evaluated by the NCDWQ, the NCWRC, the USFWS, the NCDWR, the USFS and DPNA and new proposals included in the 401 Water Quality Certification and FERC relicensing processes for the Nantahala Project, East Fork Project and the West Fork Project. The new proposals could include additional or modified minimum flows or other appropriate mitigation. 4) DPNA will make any necessary revisions to its 401 Water Quality Certification and FERC license applications. 5) Once any revised applications are received, the NCDWQ and the FERC will complete their Is reviews and issue their official decisions concerning the new licenses. 6) By 12/1/05 or within 6 months following the FERC license approval order for the Dillsboro Project, whichever comes last, DPNA will construct a canoe / kayak portage around the dam. 7) The DPNA contribution to the Unique Fishery Identification listed in Item F.3 below would not be required. 3. Unique Fishery Identification a. Provide support when requested, but not before the final FERC order concerning Dillsboro Project license surrender is received and the closure of all legal challenge periods has occurred, to the USFWS and the NCWRC on studies to determine the range and distribution of the sicklefin redhorse sucker in the Little Tennessee, Hiwassee and Tuckasegee Rivers. b. DPNA's contribution may be in the form of a one-time funding contribution, in-kind services or a combination of the two, not to exceed a total cost of $40,000. 4. Southern Brook Trout Restoration Partnership a. Provide support when requested by the NCWRC, the USFWS and the USFS in a project to restore the native strain of brook trout to a selected stream in the vicinity of Tennessee Creek Hydro Station. Attachment A.NCST Consensus Agreement.doc Rev: Draft 10/15/2003 11 Attachment A - NCST Consensus Agreement b. DPNA's contribution may be in the form of a one-time funding contribution, in-kind services or a combination of the two, not to exceed a total cost of $40,000. 5. Soil & Water Conservation Enhancement Work with representatives from each county's Soil & Water Conservation District board to obtain each board's prioritized list of initiatives that would either (1) make physical improvements that protect soil or water resources, (2) educate landowners or school children on proper soil or water conservation practices, or (3) improve agency enforcement of existing soil or water conservation-related regulations. All initiatives must support improved soil or water conservation on lands that drain to any of the DPNA hydro reservoirs or the river sections between DNPA hydro reservoirs and reservoirs belonging to the Tennessee Valley Authority (TVA). The prioritized initiatives list will be requested from each board by 7/1/05. b. Review each board's prioritized list and select initiatives from the list to receive funding support from DPNA. c. Contribute $40,000 per county in Cherokee, Clay, Jackson, Macon and Swain counties toward implementation of the DPNA-selected initiatives. d. Contributions will be made between 1 and 15 years following the issuance of the applicable new FERC licenses and the closure of all legal challenge periods. 6. Riparian Habitat Enhancement a. Provide DPNA funding to support initiatives within the DPNA service area that would either (1) protect or enhance fish and wildlife habitat directly, or (2) educate landowners or school children about the importance of healthy riparian areas to fish and wildlife habitat and about the related best management practices in riparian areas. All initiatives must support protection or enhancement of fish or wildlife habitat on lands that drain to any of the DPNA hydro reservoirs or the river sections between DNPA hydro reservoirs and reservoirs belonging to the Tennessee Valley Authority (TVA). b. Work with other interested stakeholder team members to define the process by 8/1/03 that will be used to prioritize potential initiatives. Once the prioritized list of initiatives is received (target date is 7/1/05), DPNA will select initiatives from the list to receive DPNA funding support. The total DPNA contribution will be $200,000. d. Contributions will be made between 1 and 15 years following the issuance of the applicable new FERC licenses and the closure of all legal challenge periods. 7. Provide Conservation Land a. Purchase a selected tract of land and convey its interest in the land to a governmental entity or a non-profit conservation organization. b. If the tract that is currently being considered cannot be obtained at an acceptable cost to DPNA, then a replacement tract(s) of similar conservation value that can be obtained at an acceptable cost to DPNA will be pursued. Attachment A.NCST Consensus Agreement.doc Rev: Draft 10/15/2003 12 Attachment A - NCST Consensus Agreement c. Purchase of the selected tract or replacement tract(s) will be pursued in 2003 and 2004 by • DPNA. d. Conveyance of DPNA's interest in the property will occur in 2006 or within 1 year following issuance of the new FERC licenses for the East Fork, West Fork and Nantahala Projects and the closure of all legal challenge periods, whichever is longer. e. If conservation lands cannot be purchased at an acceptable cost to DPNA, then DPNA will meet with the USFS, USFWS, NCDWR, the NCWRC and other interested parties to any future settlement agreement to consider other mitigation possibilities. G. Shoreline Management 1. Interim Procedures - Until the new requirements identified in Item GA below are implemented, continue enforcing shoreline protection measures for environmentally sensitive areas (e.g. Duke- designated wetlands) and continue limiting cutting of trees within the FERC project boundaries. 2. Maps - Develop shoreline classification maps for Nantahala Lake, identifying any unique areas that need protection for environmental, recreational, cultural or operational reasons and provide the associated lake use restrictions. 3. Lake Clean Up - Beginning in 2004, work with others to support an annual "Lake Wide Clean Up" on Nantahala Lake. DPNA's contribution will be to remove trash during the week following the clean-up from pre-designated disposal sites around the lake. 4. Implement the final version of the lake use restrictions, vegetation management requirements and the shoreline management guidelines on 7/1/03. (See Exhibit A) 5. DPNA will continue reviewing and addressing lake security issues. H. Cultural Resources 1. HPMP - Develop a Historic Properties Management Plan (HPMP) for the Nantahala Project to ensure that significant cultural resources within the FERC Project boundary are documented and protected to the extent required by state and tribal historic preservation offices. 2. Additional Studies - Conduct additional archaeological studies of two identified sites if a planned drawdown of the lake to elevations that are 60 ft or more below Normal Full Pond Elevation will be conducted for 30 consecutive days or longer. 3. Historic Properties Management Plan to be developed and implemented within 2 years following FERC issuance of the new license and the closure of all legal challenge periods. E Attachment A.NCST Consensus Agreement.doc Rev: Draft 10/15/2003 13 Attachment A - NCST Consensus Agreement • I. Monetary Values 1. CPI Adjustment - The monetary values stated in this document are established in 2004 dollars. As funds are actually utilized in future years, they will be adjusted using the Consumer Price Index (CPI) to convert them from 2004 dollars to the appropriate dollar amount for the year in which the funds are actually used. J. Sediment Management 1. DPNA will endeavor in good faith to operate its hydro projects in ways that minimize the need to draw the reservoirs down to mechanically remove sediment. • • Attachment A.NCST Consensus Agreement.doc Rev: Draft 10/15/2003 14 Attachment A - NCST Consensus Agreement II. The Nantahala Cooperative Stakeholder Team agrees in consensus to the i following for the relicensing process and the term of the next FERC license period for DPNA's Nantahala Hydro Project: A. Support continued operational flexibility for DPNA's Nantahala Hydro Project 1. Flow Prescriptions - Provided Dillsboro Dam is removed, there will be no requests or support for prescribed flows of any kind (minimum flows, bypass flows, recreation flows, channel maintenance flows, etc.) other than the prescribed flows proposed herein, except for emergency requests to support human health, environmental health, human safety or to avoid property damage. 2. Lake Level Limitations - There will be no requests or support for lake level restrictions of any kind other than those identified herein, except for emergency requests to support human health, environmental health, human safety or to avoid property damage. 3. Operational Restrictions - There will be no requests or support for other hydro operational restrictions of any kind (e.g. ramping rate limits, peaking power limits, pulsing of hydro units, etc.), except for emergency requests to support human health, environmental health, human safety or to avoid property damage. 4. Low Inflow Protocol - Agree to share the burden of low water availability in accordance with the attached Low Inflow Protocol (see Exhibit B). • 5. Hydro Project Maintenance & Emergency Protocol - Agree to the approach for temporary deviation from certain license conditions to handle specific abnormal situations in accordance with the attached Hydro Project Maintenance & Emergency Protocol (see Exhibit Q. B. Actively participate with DPNA in recreation area construction and/or management. 1. Access Area Operation and Maintenance a. NCWRC will enter into a cooperative maintenance agreement with DPNA similar to the existing agreement on other Duke Power lakes (see Exhibit D) for the access areas located on property owned by DPNA at Nantahala Lake (2), and the Nantahala River Bypass (1). b. USFS will operate and maintain the facilities that are located on land owned by the USFS. USFS will operate and maintain the facilities that are located on land leased from DPNA in accordance with the lease agreement and a written plan & schedule for operation and maintenance that will be reviewed and approved by DPNA. 2. Access Area Construction a. NCWRC will provide any cost-share funding and construction support as noted herein and will repair / rebuild the facilities that they maintain as needed, including getting any prior approvals from DPNA as may be required by the maintenance agreement. • b. USFS will repair / rebuild the facilities located on their land as needed. Attachment A.NCST Consensus Agreement.doc Rev: Draft 10/15/2003 15 Attachment A - NCST Consensus Agreement 0c. USFS will repair / rebuild the facilities located on land leased from DPNA as needed, including obtaining any prior approvals from DPNA as may be required by the lease agreement. 3. Consideration of Additional Public Recreation Facilities in the Future a. No additional public recreation facilities associated with the Nantahala Project beyond those noted herein will be requested by NCST members or the organizations they represent within the first 15 years of the new FERC license. b. Established mechanisms for monitoring growth in recreation facility demand (e.g. FERC Form 80, NC State Comprehensive Outdoor Recreation Plan, USFS recreation use monitoring, etc.) will be utilized as indicators of any potential need for additional facilities or facility expansions in the future. DPNA may also choose to undertake recreation use and needs studies if it desires to evaluate any future recreation needs that may be directly related to its hydro project. d. After the first 15 years of operation under the new FERC license, additional recreation facilities can be requested by NCST members or the organizations they represent. All such requests should be justified by the requester with the necessary supporting data. e. If DPNA agrees that additional recreation facilities that are directly related to its hydro project are needed, it will endeavor in good faith to budget funds and make the necessary improvements. Preference will be given to upgrades of existing facilities that require no additional property rights and for which substantial cost-share funds are made available from other sources. C. Not oppose new FERC license conditions and compliance monitorinp, requirements and 401 Water Quality Certification conditions that are consistent with this agreement. 1. Compliance Monitoring a. All agencies will work cooperatively with DPNA to design adequate compliance monitoring programs that do not cause undue burden to DPNA. 2. FERC Licenses a. There will be no requests or support for any FERC license conditions that conflict with the above conditions or that add substantial additional burdens, costs or risks to DPNA beyond the burdens, costs and risks as noted herein. b. There will be no requests or support for any FERC license re-openers of any kind beyond those that FERC includes in licenses for hydro projects of this size. c. Provided Dillsboro Dam is removed, there will be no Section 18 Mandatory Conditions included in the new licenses for any of the DPNA hydros, beyond those absolutely essential to protect fish resources that are directly affected by operation of a DPNA hydro project. Also, • provided Dillsboro Dam is removed, any Section 18 Mandatory Conditions must not conflict with the above conditions and will not add substantial additional burdens, costs or risks to Attachment A.NCST Consensus Agreement.doc Rev: Draft 10/15/2003 16 Attachment A - NCST Consensus Agreement DPNA beyond the burdens, costs and risks as noted herein. If the USFWS determines that any • Section 18 Mandatory Conditions should be required, it will impose the least cost alternative that ensures continued protection of fish resources. Also, it is the intent of the USFWS and DPNA to work together prior to the signing of any settlement agreement to identify some portion of the next license periods within which it is not expected that any Section 18 Mandatory Conditions, beyond the standard reservation of that authority, would be necessary or pursued. d. There will be no Section 4e Mandatory Conditions beyond those absolutely essential to protect National Forest resources that are directly affected by operation of a DPNA hydro project. Any Section 4e Mandatory Conditions must not conflict with the above conditions and will not add substantial additional burdens, costs or risks to DPNA beyond the burdens, costs and risks as noted herein. If the USFS determines that any Section 4e Mandatory Conditions should be required, it will impose the least cost alternative that ensures continued protection of National Forest resources. 3. 401 Water Quality Certifications a. There will be no requests or support from stakeholder team members other than the NCDWQ for any 401 Water Quality Certification conditions that conflict with the above conditions or that add substantial additional burdens, costs or risks to DPNA beyond the burdens, costs and risks as noted herein. b. If the NCDWQ requires 401 Water Quality Certification conditions that conflict with the above conditions or that add substantial additional burdens, costs or risks to DPNA beyond the burdens, costs and risks as noted herein, then the steps outlined in Item D. below will be pursued. c. There will be no requests or support for any re-openers of any kind in the 401 Water Quality Certifications for the Nantahala Hydro Project beyond the standard NCDWQ language included in 401 Water Quality Certifications for hydro projects. 4. Statutory Responsibilities of Governmental Agencies a. Nothing in this document will prevent any governmental agency from acting as it thinks it must to comply with its mandated statutory responsibilities. b. The governmental agencies that are members of the stakeholder team believe they can exercise their statutory duties in a manner that is materially consistent with this document. D. Agree that the following actions will be taken if anv jurisdictional body takes action that is materially inconsistent with any future settlement agreement that is develoned based on this document: 1. DPNA will make the parties to any future settlement agreement aware of the situation. 2. DPNA will work with the appropriate jurisdictional body to pursue any alternatives which • eliminate the inconsistency and that are acceptable to both DPNA and the jurisdictional body. Attachment A.NCST Consensus Agreement.doc Rev: Draft 10/15/2003 17 Attachment A - NCST Consensus Agreement • 3. Once a consistent alternative is identified or if the material inconsistency cannot be satisfactorily eliminated, DPNA will: a. Meet with the parties to any future settlement agreement to explain the situation and discuss any potential needs to revise the settlement agreement requirements to be consistent with the jurisdictional body's actions or to offset the additional burdens, costs or risks placed on DPNA by the jurisdictional body's actions. b. The parties to any future settlement (including DPNA) will endeavor in good faith to cooperatively make timely changes to the settlement agreement that are necessary to meet the jurisdictional body's demands without increasing the overall burdens, costs and risks placed on DPNA. c. Advise the parties to any future settlement of DPNA's planned actions, which may include partial or full withdrawal from the requirements of the settlement agreement if the parties and DPNA cannot agree on any necessary changes to the settlement agreement requirements. • is Attachment A.NCST Consensus Agreement.doc Rev: Draft 10/15/2003 18 Attachment A - NCST Consensus Agreement III. Full Consensus Acknowledgement - The undersigned Primary Members of the Nantahala • Cooperative Stakeholder Team (NCST) acknowledge all of the following: A. Participation & Knowledge - They have participated in the activities of the NCST and have a good understanding of the information contained herein. • • B. Consensus Level - By signing below, they are indicating that based on their current knowledge level and consideration of their interests and those of the groups they represent, they are in agreement with the entirety of this document, (hereafter called a "consensus agreement") with agreement being defined as a rating of 1-4 on the 5-point consensus scale identified in the NCST charter (see Exhibit E). C. Opportunity to Register Major Reservations - That on the appropriate line within the signature block below, they have identified the paragraph, subparagraph and page numbers of any specific element(s) of this agreement that they rated as a "4" on the 5-point consensus scale identified in the NCST charter (see Exhibit E). Also, they will provide to the Natural Resources Leadership Institute (NRLI) not later than 6/30/03, a I00-word or less statement describing their basic reasons for having Major Reservations with the specific element(s). D. Settlement Agreement Development - By being in agreement with the entirety of this document, their organization is requested to help develop and sign a binding settlement agreement not later than 9/15/03 that will convert this consensus agreement into a binding contract, subject to any changes, addition of details and terms and conditions as may be determined necessary by consensus of the parties signing the settlement agreement. E. Good Faith Effort to Sign Settlement - That based on their current level of knowledge, they do not know of any reason why their organization would not sign the above-mentioned, binding settlement agreement, and that they will endeavor in good faith with the other parties noted below to develop the settlement agreement and acquire the signature of their authorized representative. F. No Legal Obligation - That by signing below, they are not legally obligating their organization to sign any future settlement agreements. G. Filing Consensus Agreement - DPNA will file this consensus agreement and the report information as identified in the NCST charter (see Exhibit E) with the FERC along with its license applications and with the NCDWQ along with its applications for 401 Water Quality Certifications as necessary for the relicensing process. H. Filing Settlement Agreement - Provided that DPNA signs the future settlement agreement, that DPNA will also file the settlement agreement with the FERC and the NCDWQ for the agencies' consideration as they process the license and / or license surrender applications and the 401 Water Quality Certification applications for the DPNA hydros. DPNA will also request that the FERC and the NCDWQ act consistently with the applicable terms of the settlement agreement as the agencies develop the new license documents or license surrender orders and the 401 Water Quality Certifications for the DPNA hydro projects. Attachment A.NCST Consensus Agreement.doc Rev: Draft 10/15/2003 19 Attachment A - NCST Consensus Agreement • (Signature) (Date) (Printed Name) (Organization) (Paragraph, Subparagraph and Page Number of Any Agreement Elements for which Member has Major Reservations (i.e. Rated as a "4") (Signature) (Printed Name) (Date) (Organization) (Paragraph, Subparagraph and Page Number of Any Agreement Elements for which Member has Major Reservations (i.e. Rated as a "4") (Signature) (Printed Name) (Date) (Organization) ?raragrapn, ?ueparagraph and Yage Number of Any Agreement Elements for which Member has Major Reservations (i.e. Rated as a "4") • Attachment A.NCST Consensus Agreement.doc Rev: Draft 10/15/2003 20 Attachment A - NCST Consensus Agreement • IV. No Pursuit of Settlement Agreement - The undersigned Primary Members of the Nantahala Cooperative Stakeholder Team (NCST) acknowledge all of the following: A. Participation & Knowledge - They have participated in the activities of the NCST and have a good understanding of the information contained herein. B. Consensus Level - By signing below, they are indicating that based on their current knowledge level and consideration of their interests and those of the groups they represent, they are either (a) in agreement with some, but not all of this document (hereafter called a "consensus agreement"), with agreement being defined as a rating of 1-4 on the 5-point consensus scale identified in the NCST charter (see Exhibit E), (b) they are not in agreement with any of this document or (c) they are in full agreement with this document, but their organization cannot or will not sign a legally- binding settlement agreement. C. Provision of Dissention Statements - That on the appropriate line within the signature block below, they have identified the paragraph, subparagraph and page numbers of any specific element(s) of this agreement that they rated as a "5" on the 5-point consensus scale identified in the NCST charter (see Exhibit E). Also, they have provided or will provide to the Natural Resources Leadership Institute (NRLI) not later than 6/30/03, a 100-word or less Dissention Statement describing their basic reasons for not being able to live with the specific element(s) that they rated as a "5" or their basic reasons for not signing a binding settlement agreement. D. No Participation in Settlement Agreement - By not agreeing with the entirety of this document, their organization will not participate in the development of, or sign a binding settlement agreement. E. Reconsideration of Consensus or Settlement Position - That if they should reconsider their decision and agree to this consensus agreement in its entirety and agree to pursue signing a settlement agreement, and provided that the Primary Member and the organization they represent have continuously complied with the behavioral boundaries established by the NCST charter (see Exhibit E), then they may contact DPNA or the NRLI and arrange to amend their signature on this consensus agreement accordingly, but not later than June 30, 2003. In such cases, they will then be able to help develop and potentially sign the settlement agreement with the other parties that agreed with the entirety of this consensus agreement. F. Favored Provisions May be Modified - By not pursuing the settlement agreement, favored provisions of primary members and their organizations could potentially be modified without malice in the development of additional detail and other modifications deemed necessary for the creation of the settlement agreement. G. Filing Consensus Agreement - DPNA will file this consensus agreement and the report information as identified in the NCST charter (see Exhibit E) with the FERC along with its license applications and with the NCDWQ along with its applications for 401 Water Quality Certifications as necessary for the relicensing process. t Attachment A.NCST Consensus Agreement.doc Rev: Draft 10/15/2003 21 Attachment A - NCST Consensus Agreement H. No ObliEations For DPNA - That since this consensus agreement does not constitute a legally- binding contract, DPNA is under no obligation whatsoever to request or agree with incorporation of any conditions in its new FERC licenses or the applicable 401 Water Quality Certifications that the undersigned believes may be necessary or otherwise desirable. • Attachment A.NCST Consensus Agreement.doc Rev: Draft 10/15/2003 22 Attachment A - NCST Consensus Agreement so (Signature) (Date) (Printed Name) (Organization) (Paragraph, Subparagraph and Page Number of Any Agreement Elements that Member could not Live with (i.e. Rated as a "5") (Signature) (Printed Name) (Date) (Organization) • (Paragraph, Subparagraph and Page Number of Any Agreement Elements that Member could not Live with (i.e. Rated as a "5") (Signature) (Date) (Organization) (Printed Name) E (Paragraph, Subparagraph and Page Number of Any Agreement Elements that Member could not Live with (i.e. Rated as a "5") Attachment A.NCST Consensus Agreement.doc Rev: Draft 10/15/2003 23 Attachment A - NCST Consensus Agreement V. List of Exhibits • A. DPNA lake use restrictions vegetation management requirements and the shoreline management guidelines - effective 7/1/03 B. Low Inflow Protocol for the Nantahala Project C. Hydro Project Maintenance & Emergency Protocol for the Nantahala Project D. Example Access Area Maintenance Agreement between Duke Power and the NCWRC E. NCST Charter • • Attachment A.NCST Consensus Agreement.doc Rev: Draft 10/15/2003 24 Attachment B - Low Inflow Protocol (LIP) for the Nantahala Project • Introduction This Low Inflow Protocol (LIP) provides trigger points and procedures for how the Nantahala Project (FERC # 2692) will be operated by the Licensee during periods of low inflow (i.e. periods when there is not enough water flowing into Nantahala Lake to meet the normal needs for power generation, recreation flows, minimum flows, any on-reservoir water withdrawals and lake level maintenance). The protocol was developed on the basis that all parties with interests in water quantity will share the impact of low inflow. In general during periods of normal inflow, the Licensee will provide at least a prescribed number of hours per day of generation to support electric customer needs and the needs of whitewater boaters in the main stem of the Nantahala River, in addition to providing minimum flows in bypassed stream reaches, scheduled Tainter gate releases for recreation and maintaining lake levels above certain prescribed minimum levels. During low inflow periods when the Licensee cannot meet all of the above conditions, it will reduce generation weekly by a prescribed amount per day during generation and/or recreation periods, along with corresponding weekly reductions in bypass flows, Tainter gate releases for recreation and minimum reservoir levels. In addition, any large (i.e. greater than or equal to one Million Gallons per Day (MGD) maximum instantaneous capacity) water intakes that are authorized on Nantahala Lake, Whiteoak Creek Pond or Dicks Creek Pond in the future will also have a reduction protocol incorporated into the easement documents that the Licensee uses to approve of such intakes. The incremental reduction of all water demands on the system will continue until inflows are restored to a point where Nantahala Lake level returns to its Normal Operating Range. Key Facts and Assumptions 1. Dicks Creek - Dicks Creek will continue to be free-flowing with inflow into the pond formed by Dicks Creek Diversion Dam being equal to the outflow at the base of the dam. No water will be diverted into the penstock at Dicks Creek Diversion Dam. 2. Minimum Flows in Bypassed Stream Reaches - Assume the new license for this project will include the following requirements for minimum releases from hydro project works into bypassed stream reaches to enhance water quality and/or aquatic species habitat (except during periods of low inflow covered by a low inflow protocol): a. Nantahala River Bypassed Reach • Attachment B. LIP for the Nantahala Project.doc Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the Nantahala Project 1) Minimum Flow Valve #1 - Maintain the existing minimum flow valve capable of releasing up to 8 cfs • from the Whiteoak Creek Penstock into Dicks Creek to provide flows in the Nantahala River Bypassed Reach. 2) Minimum Flow Valve #2 - Install an additional minimum flow valve capable of releasing up to 8 cfs from the Whiteoak Creek Penstock into Dicks Creek to provide flows in the Nantahala River Bypassed Reach. 3) From the two minimum flow valves located on the Whiteoak Creek Penstock, provide a total of the following releases into Dicks Creek to provide flows in the Nantahala River Bypassed Reach: a) From November 1 through May 31, 8 cfs. b) From June 1 through October 31, 16 cfs. b. Whiteoak Creek Bypassed Reach 1) Whiteoak Creek Diversion Dam - Provide 8 cfs or stream flow, whichever is less, from the Whiteoak Creek Diversion Dam into the Whiteoak Creek Bypassed Reach from January 1 through December 31. r 3. Normal Generation Releases for Recreation - Assume the new license for this project will include the following requirements for a Normal Generation Schedule to Support Recreation at the Nantahala Powerhouse, with all releases being at or above the Best Efficiency Flow for the Nantahala Hydro Unit: a. 2°a Monday in March through March 31 - 10:00 am to 3:00 pm, seven days per week b. April - 10:00 am to 4:00 pm, seven days per week c. May through Labor Day - 9:00 am to 5:00 pm, seven days per week, plus provide one additional hour to the schedule (i.e. 9:00 am to 6:00 pm) on both the Saturday and Sunday before Memorial Day and Labor Day d. September after Labor Day- 10:00 am to 4:00 pm Sunday through Friday, 9:00 am to 5:00 pm Saturday e. October- 10:00 am to 3:00 pm Sunday through Friday and 9:00 am to 5:00 pm Saturday. 4. Other Prescribed Generation Releases - Assume the new license for this project will also include the following requirements for prescribed generation releases in addition to the above Normal Generation Schedule to • Support Recreation: Attachment B. LIP for the Nantahala Project.doc 2 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the Nantahala Project • a. Whitewater Races - Provide up to 70 hrs per year of generation releases (all at or above the Best Efficiency Flow for the Nantahala Hydro Unit) to support established National, Southeastern Regional or State Level Whitewater Races. To the maximum practical extent, releases will be integrated with the normal release schedule so that additional release hours beyond the normal release schedule are not needed. b. Other Special Events - Other non-race requests for special generation releases that require additional generation hours above the total number of hours in any given month in the Normal Generation Schedule to Support Recreation will be handled on a case-by-case basis. To the maximum practical extent, releases will be integrated with the normal release schedule so that additional release hours beyond the normal release schedule are not needed. 5. Bypass Flow Releases for Recreation - Assume the new license for this project will include requirements for scheduled releases from Nantahala Dam into the Nantahala River Bypassed Reach to enhance downstream recreation: a. Spring Weekend - Release water for six hours per day for one weekend (Saturday and Sunday) per year, scheduled for the last weekend in April. Target flowrates will be approximately 250 cfs on Saturday and approximately 350 cfs on Sunday. Releases will be timed to reach the confluence of Whiteoak Creek with the Nantahala River (i.e. approximately 5.8 river miles downstream of Nantahala Dam) at approximately 10:00 am. b. Summer Afternoons - Provide four total afternoon releases per year for three hrs each at a target flowrate of approximately 250 cfs, scheduled between June 15 and August 31. Releases will be timed to reach the confluence of Whiteoak Creek with the Nantahala River (i.e. approximately 5.8 river miles downstream of Nantahala Dam) at approximately 4:00 pm. c. Fall Weekend - Release water for seven hours per day for one weekend per year, scheduled between September 15 and September 30. Releases will be for seven hours at a target flowrate of approximately 300 cfs on Saturday; and five hours at a target flowrate of approximately 425 cfs and two hours at a target flowrate of approximately 250 cfs on Sunday. Releases will be timed to reach the confluence of Whiteoak Creek with the Nantahala River (i.e. approximately 5.8 river miles downstream of Nantahala Dam) at approximately 10:00 am. • Attachment B. LIP for the Nantahala Project.doc Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the Nantahala Project d. Target Flowrates - The target flowrates stated above are for flowrates immediately below the confluence of • Whiteoak Creek with the Nantahala River (i.e. approximately 5.8 river miles downstream of Nantahala Dam). Actual release amounts from the Tainter gates need to be large enough that when combined with other tributary and accretion flows, the total is at or above the approximate target flowrates. 6. Normal Full Pond Elevation - also referred to simply as "full pond", this is the level of a reservoir that corresponds to the point at which water would first begin to spill from the reservoir's dam(s) if the Licensee took no action. This level corresponds to the lowest point along the top of the spillway (including any fuse plugs or flashboards) for reservoirs without flood gates and to the lowest point along the top of the flood gates for reservoirs that have them. For Nantahala Lake, Normal Full Pond Elevation is at 3012.2 ft above Mean Sea Level. To avoid confusion among the many reservoirs the Licensee operates, it has adopted the practice of referring to the Normal Full Pond Elevation for all of its reservoirs as equal to 100.0 ft relative. 7. Normal Minimum Elevation - the level of a reservoir (measured in ft above Mean Sea Level (msl) or feet relative to the full pond contour with 100.0 ft corresponding to full pond) that defines the bottom of the reservoir's Normal Operating Range for a given day of the year. If inflows and outflows to the reservoir are kept within some reasonable tolerance of the average or expected amounts, hydro project equipment is • operating properly and no protocols for abnormal conditions have been implemented, reservoir level excursions below the Normal Minimum Elevation should not occur. 8. Normal Maximum Elevation - the level of a reservoir (measured in ft above Mean Sea Level (msl) or feet relative to the full pond contour with 100.0 ft corresponding to full pond) that defines the top of the reservoir's Normal Operating Range for a given day of the year. If inflows and outflows to the reservoir are kept within some reasonable tolerance of the average or expected amounts, hydro project equipment is operating properly and no protocols for abnormal conditions have been implemented, reservoir level excursions above the Normal Maximum Elevation should not occur. (Note: See Item 17 below for special drought storage considerations). 9. Normal Target Elevation - the level of a reservoir (measured in ft above Mean Sea Level (msl) or feet relative to the full pond contour with 100.0 ft corresponding to full pond) that the Licensee will endeavor in good faith to achieve, unless operating in the Low Inflow or Hydro Project Maintenance & Emergency Protocol. The Normal Target Elevation will fall within the Normal Operating Range, but it may not always be the average of the Normal Minimum and Normal Maximum Elevations. Attachment B. LIP for the Nantahala Project.doc 4 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the Nantahala Project 10. Normal Operating Range for Lake Levels - the band of reservoir levels within which the Licensee normally • attempts to maintain a given reservoir that it operates on a given day. Each reservoir has its own specific Normal Operating Range, and that range is bounded by a Normal Maximum Elevation and a Normal Minimum Elevation. If inflows and outflows to the reservoir are kept within some reasonable tolerance of the average or expected amounts, hydro project equipment is operating properly and no protocols for abnormal conditions have been implemented, reservoir level excursions outside of the Normal Operating Range should not occur. (Note: See Item 17 below for special drought storage considerations). Assume the new license for this project will include requirements for the following Normal Operating Range: • Month Normal Minimum Elevation (ft) Normal Target Elevation (ft) Normal Maximum Elevation (ft) Jan 73 78 83 Feb 76 83 88 Mar 78 88 93 Apr 85 93 98 May 93 97 99.5 Jun 93 97 99.5 Jul 93 97 99.5 Au 91 96 99.5 Se 88 93 98 Oct 83 88 93 Nov 78 83 88 Dec 73 78 83 Note: The above are the Normal Maximum, Normal Minimum and Normal Target Elevations for the first day of each month. The Normal Maximum, Normal Minimum and Normal Target Elevations for any other day of the month can be determined by linear interpolation. 11. Net inflow - The cumulative inflow into a reservoir, usually expressed in ac-ft per week or ac-ft per month that is available for generation of hydroelectricity or for supplying non-generation water demands. Net inflow is the sum of tributary stream flow, groundwater runoff, precipitation falling on the reservoir surface, surface runoff and point-source discharge flows, less the sum of net on-reservoir water withdrawals, groundwater recharge and evaporation. 12. Normal Minimum Generation Volume - the minimum amount of net inflow, expressed in ac-ft per month, ac-ft per week or MWH of electric generation per week that is normally reserved in a hydro reservoir for release through the hydro turbines, producing hydroelectricity. For purposes of this low inflow protocol, the following • are the Normal Minimum Generation Volumes for the Nantahala Project: Attachment B. LIP for the Nantahala Project.doc 5 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the Nantahala Project • Period Normal Minimum Generation Volume (ac-ft / week) Corresponding Energy Production (MWH / week) May - Feb 2430 2324 Mar 1519 1453 Apr 1822 1743 Note: The above water volumes and generation amounts assume that the new runner at Nantahala Hydro Station is operating at its Best Efficiency Point and is producing 41.5 MW and releasing 525 cfs for eight hrs per day, seven days per week from May through February; five hrs per day, seven days per week in March and six hrs per day, seven days per week in April. The above water volumes and generation amounts include both the energy produced by the hydro turbine during generation releases to support downstream recreation as well as energy produced during other periods of unit dispatch to meet the Licensee's electric customers' needs. To the maximum practical extent, when the weekly minimum generation volumes are reduced in the LIP, the reductions will be shared equally between the MWH/week that are reserved to make generation releases to support downstream recreation and generation releases (i.e. dispatch) to support electric customers' needs. 13. Threshold Minimum Flows - the minimum flow release amounts from hydro project works that may be necessary to sustain aquatic communities consistent with the resource management goals and objectives for the affected stream reaches. Since the normal minimum flow releases are for water quality and / or aquatic species habitat enhancements, the Threshold Minimum Flows are related to and lower than the normal minimum flow releases required by the FERC license. For the purposes of this protocol, it is assumed that the Threshold Minimum Flows are as follows: a. Whiteoak Creek Bypassed Reach - 2 cfs or inflow into Whiteoak Creek Pond, whichever is less, released from Whiteoak Creek Diversion Dam into the Whiteoak Creek Bypassed Reach. b. Nantahala River Bypassed Reach - The following combined flowrates released from the two Spill Valves on the Whiteoak Creek Penstock: 1) From November 1 through May 31 - 2 cfs 2) From June 1 through October 31 - 5 cfs. Attachment B. LIP for the Nantahala Project.doc 6 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the Nantahala Project 14. Priority of Reducing Minimum Flows - when making reductions in minimum flows in the bypassed reaches, the following priority will be used, reducing each release point to its Threshold Minimum Flow value before moving to the next release point: a. Reduce the spill at Whiteoak Creek Diversion Dam b. Reduce the flowrates from the Spill Valves on the Whiteoak Creek Penstock 15. Normal Minimum Non-Generation Volume - the minimum amount of net inflow, usually expressed in ac-ft per month or ac-ft per week that is normally reserved in a hydro reservoir to account for the portion of net inflow that leaves the reservoir without producing hydroelectricity. Examples include leakage from the main dam(s), diversion dam(s), penstock(s) or hydro turbine(s) into surface water; releases from flood, sluice and trash gates; and releases from minimum flow devices. 16. Low inflow period - any period when net inflow to a reservoir is not sufficient to maintain the reservoir's elevation above the Normal Minimum Elevation, while still providing the Normal Minimum Generation Volume, and the Normal Minimum Non-Generation Volume. 17. Drought Storage Considerations - the Licensee will be allowed to raise the reservoir to levels above the Normal Maximum Elevation when water is available during periods of extended drought. 18. Threshold Bypass Whitewater Recreation Release - the duration and target flowrate below which Tainter gate releases in the Nantahala River Bypassed Reach to support whitewater boating can no longer achieve their intended purpose due to very short run times or too much contact with the riverbed. For the purpose of this protocol, the Threshold Bypass Whitewater Recreation Release is 175 cfs (target flowrate immediately below the confluence of Whiteoak Creek with the Nantahala River (i.e. approximately 5.8 river miles downstream of Nantahala Dam)) for 2 hours duration. 19. Priority of Reducinjz Tainter Gate Releases for Whitewater Recreation - when making reductions in Tainter gate releases for whitewater recreation in the Nantahala River Bypassed Reach, the duration of the release should be reduced first until it reaches the above stated threshold duration, then the target flowrates should be reduced until the threshold flowrate is reached. If there is a 2-hr release planned for each of two consecutive days, then it's preferable to have a single 4-hr release than two, 2-hr releases. For days where the scheduled is release included hours at two different target flowrates, the reduction should be made in the following order: Attachment B. LIP for the Nantahala Project.doc 7 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the Nantahala Project a. Reduce duration of the release for the lower scheduled flowrate in steps until the duration equals the above stated threshold duration (see Item 18 above). b. Reduce duration of the release for the higher scheduled flowrate in steps until the duration equals the above stated threshold duration (see Item 18 above). c. Reduce targeted flowrate of the release for the lower scheduled flowrate in steps until it equals the above stated threshold flowrate (see Item 18 above). d. Reduce targeted flowrate of the release for the higher scheduled flowrate in steps until it equals the above stated threshold flowrate (see Item 18 above). 20. Relationship Between this Protocol and the Hydro Project Maintenance & Emergency Protocol (HPMEP) - The HPMEP outlines the general approach the Licensee will take under certain emergency and equipment failure and maintenance situations to continue practical and safe operation of the hydro project, to mitigate any related impacts to license conditions and to communicate with resource agencies and the affected parties. Under the HPMEP, temporary modifications of minimum flow releases in bypassed stream reaches, generation releases, Tainter gate releases for recreation and the lake level operating range are allowed. Except for an outage of the Whiteoak Creek Penstock or Diversion Dam or a stuck-open Tainter gate on Nantahala Dam, 40 lowering levels of Nantahala Lake caused by situations addressed under the HPMEP will not invoke implementation of this Low Inflow Protocol (LIP). Also, if the LIP has already been implemented at the time that a situation covered by the HPMEP is initiated, the Licensee will typically suspend implementation of the LIP until the HPMEP situation has been eliminated. The Licensee may however choose to continue with the LIP if desirable. 21. Organizational abbreviations include the NC Division of Water Resources (NCDWR), NC Wildlife Resources Commission (NCWRC), United States Forest Service (USFS), United States Fish & Wildlife Service (USFWS), American Whitewater Affiliation (AW), United States Geological Survey (USGS) and the Nantahala Gorge Association (NGA). 22. Safety and Electric System Integrity are of Utmost Importance - Nothing in this protocol will limit the Licensee's ability to take any and all lawful actions necessary at its hydro projects to protect human health and safety, protect its equipment from major damage and ensure the stability of the regional electric grid. It is recognized that the Licensee may take the steps that are necessary to protect these things without prior consultation or notification. • Attachment B. LIP for the Nantahala Project.doc Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the Nantahala Project • Procedure • • During low inflow periods as defined above, the Licensee will follow the protocol set forth below regarding adjustments to generation amounts, minimum flow releases, Tainter gate releases from Nantahala Dam for recreation, and minimum reservoir elevations and will make the adjustments set forth below on a weekly basis so as to equitably allocate the impacts of reduced water availability: Stage 1 Reductions: 1. Upon a determination by the Licensee that the reservoir elevation cannot be maintained at or above the Normal Minimum Elevation for the time of year specified above, the Licensee will reduce minimum generation volume to a lower amount (referred to as the Stage 1 Minimum Generation Volume and expressed in MWH/wk) as determined below: Period Normal Min. Generation Volume (MWH/wk) Stage 1 Min. Generation Volume (MWH/wk) % Reduction From Normal Water Volume Used May 1- Feb 29 2324 2034 12.5 Mar 1 - Mar 31 1453 1162 20 Apr 1 - Apr 30 1743 1452 16.7 Note: The above reductions represent a one-hour per day reduction in generation from the normal schedules. This reduction will be split equally between the Licensee's dispatch periods and the scheduled generation releases to support downstream recreation. If any additional hours of generation releases were scheduled to support whitewater races or other special events, then those uses will be required to use the modified releases as noted above. The average water volume reduction for the 12-month period represented above is 13.2%. 2. At the same time, the Licensee will reduce the minimum flow release from Whiteoak Creek Diversion Dam to a new flowrate (referred to as the Stage 1 Whiteoak Creek Diversion Dam Minimum Flow and expressed in cfs) as determined below: Attachment B. LIP for the Nantahala Project.doc 9 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the Nantahala Project • • L Period Normal Total Min. Normal Min. Flow Stage 1 Whiteoak % Reduction Flows in the at Whiteoak Creek Creek Diversion From Normal Bypassed Reaches Diversion Dam Dam Min. Flow Water Volume (cfs) (cfs) (cfs) Used Nov 1 - May 16 8 cfs or inflow to 6 12.5 31 Whiteoak Creek Pond, whichever is less Jun 1 - Oct 31 24 8 cfs or inflow to 5 12.5 Whiteoak Creek Pond, whichever is less 3. At the same time, if recreation releases from the Nantahala Dam are scheduled during Stage 1 reductions, then the releases will be reduced as noted below: Tainter Gate Normally Scheduled Stage 1 Duration and % Reduction From Release Duration and Target Target Flowrates (*) (hrs Normal Water Flowrates (*) (hrs and cfs) and cfs) Volume Used Spring Weekend Sat. - 6-hr release @ 250 cfs Sat. - 5-hr release @ 250 cfs 16.7 in April Sun. - 6-hr release@ 350 cfs Sun.- 5-hr release@ 350 cfs Summertime 3-hr release @ 250 cfs 2-hr release @ 250 cfs 33.3 Afternoons between June 15 and August 31 Fall Weekend Sat. - 7-hr release @ 300 cfs Sat. - 6-hr release @ 300 cfs 15.3 between Sun. - 5-hr release @ 425 cfs, Sun. - 4-hr release @ 425 cfs, September 15 and 2-hr release @ 250 cfs 2-hr release @ 250 cfs September 30 Note: * Target flowrates are just below the confluence of Whiteoak Creek and the Nantahala River. Attachment B. LIP for the Nantahala Project.doc 10 Rev.: DRAFT 10115103 Attachment B - Low Inflow Protocol (LIP) for the Nantahala Project 4. At the same time, the Licensee will reduce the reservoir's Normal Minimum Elevation by three feet for the • relevant time period as shown above. The newly modified minimum elevation is referred to as the Stage 1 Minimum Elevation. (Note: Three feet represents 11 % of the total 26.5-ft bandwidth provided by the Normal Operating Range). 5. The Licensee will directly notify NCDWR, NCWRC, USFWS, USFS, the NGA President and the AW representative when Stage 1 reductions are implemented. If additional generation releases were scheduled to support whitewater races or other special events, the Licensee will include the event sponsor in this direct notification. The Licensee will endeavor in good faith to provide at least 24 hours advance notification. 6. The Licensee will update its website and telephone messages to account for the impacts of the above LIP on schedules for generation and bypass recreational releases and lake levels. Stage 2 Reductions 1. Upon a determination by the Licensee that the reservoir elevation cannot be maintained at or above the Stage 1 Minimum Elevation for the time of year specified above, the Licensee will reduce the minimum generation volume to a lower amount (referred to as the Stage 2 Minimum Generation Volume and expressed in MWH/wk) as determined below: Period Normal Min. Generation Volume (MWH/wk) Stage 2 Min. Generation Volume (MWH/wk) % Reduction From Normal Water Volume Used May 1 - Feb 29 2324 1743 25 Mar 1- Mar 31 1453 872 40 Apr 1 - Apr 30 1743 1162 33.4 Note: The above reductions represent a two-hour per day reduction in generation from the normal schedules. This reduction will be split equally between the Licensee's dispatch periods and the scheduled generation releases to support downstream recreation. If any additional hours of generation releases were scheduled to support whitewater races or other special events, then those uses will be required to use the modified releases as noted above. The average water volume reduction for the12-month period represented above is 26.4%. Attachment B. LIP for the Nantahala Project.doc 11 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the Nantahala Project 2. At the same time, the Licensee will reduce the minimum flow release from Whiteoak Creek Diversion Dam to is a new flowrate (referred to as the Stage 2 Whiteoak Creek Diversion Dam Minimum Flow and expressed in cfs) as determined below: Period Normal Total Min. Normal Min. Flow Stage 2 Whiteoak % Reduction Flows in the at Whiteoak Creek Creek Diversion From Normal Bypassed Reaches Diversion Dam Dam Min. Flow Water Volume (cfs) (cfs) (cfs) Used Nov 1 - May 16 8 cfs or inflow to 4 25.0 31 Whiteoak Creek Pond, whichever is less Jun 1- Oct 31 24 8 cfs or inflow to 2 (*) 25.0 Whiteoak Creek Pond, whichever is less Note: * 2 cfs is the Threshold Minimum Flow for this location. 3. At the same time, if recreation releases from the Nantahala Dam are scheduled during Stage 2 reductions, then the releases will be reduced as noted below: • Attachment B. LIP for the Nantahala Project.doc 12 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the Nantahala Project • Tainter Gate Normally Scheduled Stage 2 Duration and % Reduction From Release Duration and Target Target Flowrates (*) (hrs Normal Water Flowrates (*) (hrs and cfs) and cfs) Volume Used Spring Weekend Sat. - 6-hr release @ 250 cfs Sat. - 4-hr release @ 250 cfs 33.3 in April Sun. - 6-hr release@ 350 cfs Sun.- 4-hr release@ 350 cfs Summertime 3-hr release @ 250 cfs 2-hr release @ 250 cfs 33.3 Afternoons between June 15 and August 31 Fall Weekend Sat. - 7-hr release @ 300 cfs Sat. - 5-hr release @ 300 cfs 28.6 between Sun. - 5-hr release @ 425 cfs, Sun. - 3-hr release @ 425 cfs, September 15 and 2-hr release @ 250 cfs 2-hr release @ 250 cfs September 30 Notes: * Target flowrates are just below the confluence of Whiteoak Creek and the Nantahala River. 4. At the same time, the Licensee will reduce the reservoir's minimum elevation by an additional three feet (six feet total below the Normal Minimum Elevation) for the relevant time period as shown above. The newly modified minimum elevation is referred to as the Stage 2 Minimum Elevation. (Note: Six feet represents 23% of the total 26.5-ft bandwidth provided by the Normal Operating Range). 5. The Licensee will directly notify the NGA President and the AW representative when Stage 2 reductions are implemented. If additional generation releases were scheduled to support whitewater races or other special events, the Licensee will include the event sponsor in this direct notification. If these Stage 2 reductions occur in June through October, the Licensee will also notify the NCDWR, NCWRC, USFWS and the USFS that the minimum flow from Whiteoak Creek Diversion Dam is at its Threshold Level. The Licensee will endeavor in • good faith to provide at least 24 hours advance notification. 6. The Licensee will update its website and telephone messages to account for the impacts of the above LIP on schedules for generation and bypass recreational releases and lake levels. Attachment B. LIP for the Nantahala Project.doc 13 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the Nantahala Project Stage 3 Reductions • 1. Upon a determination by the Licensee that the reservoir elevation cannot be maintained at or above the Stage 2 Minimum Elevation for the time of year specified above, the Licensee will reduce the minimum generation volume to a lower amount (referred to as the Stage 3 Minimum Generation Volume and expressed in MWH/wk) as determined below: Period Normal Min. Generation Volume (MWH/wk) Stage 3 Min. Generation Volume (MWH/wk) % Reduction From Normal Water Volume Used May 1 - Feb 29 2324 1453 37.5 Mar 1 - Mar 31 1453 581 60 Apr 1 - Apr 30 1743 871 50.1 Note: The above reductions represent a three-hour per day reduction in generation from the normal schedules. This reduction will be split equally between the Licensee's dispatch periods and the scheduled generation releases to support downstream recreation. If any additional hours of generation releases were scheduled to support whitewater races or other special events, then those uses will be required to use the modified releases as noted above. The average water volume reduction for the 12-month period represented above is 39.5%. 2. At the same time, the Licensee will reduce the minimum flow release from Whiteoak Creek Diversion Dam to its Threshold Minimum Flow value of 2 cfs or inflow to Whiteoak Creek Pond, whichever is less. 3. At the same time, the Licensee will reduce the minimum flow release from the spill valves located on the Whiteoak Creek Penstock to a new combined flowrate (referred to as the Stage 3 Whiteoak Creek Penstock Combined Valve Flow and expressed in cfs) as determined below: • Attachment B. LIP for the Nantahala Project.doc 14 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the Nantahala Project • • Period Normal Total Min. Normal Combined Stage 3 Whiteoak % Reduction Flows in the Min. Flow From Creek Penstock From Normal Bypassed Reaches the Whiteoak Combined Valve Water Volume (cfs) Creek Penstock Flow (cfs) Used (*) Spill Valves (cfs) Nov 1 - May 16 8 8 37.5 31 Jun 1- Oct 31 24 16 13 37.5 Notes: * % reductions include the 6 cfs minimum flow reduction implemented at Whiteoak Creek Diversion Dam. 4. At the same time, if recreation releases from the Nantahala Dam are scheduled during Stage 3 reductions, then the releases will be reduced as noted below: Tainter Gate Normally Scheduled Stage 3 Duration and % Reduction From Release Duration and Target Target Flowrates (*) (hrs Normal Water Flowrates (*) (hrs and cfs) and cfs) Volume Used Spring Weekend Sat. - 6-hr release @ 250 cfs Sat. - 3-hr release @ 250 cfs 50 in April Sun. - 6-hr release@ 350 cfs Sun.- 3-hr release@ 350 cfs Summertime 3-hr release @ 250 cfs 2-hr release @ 175 cfs (**) 46.7 Afternoons between June 15 and August 31 Fall Weekend Sat. - 7-hr release @ 300 cfs Sat. - 4-hr release @ 300 cfs 46.0 between Sun. - 5-hr release @ 425 cfs, Sun. - 2-hr release @ 425 cfs, September 15 and 2-hr release @ 250 cfs 2-hr release @ 250 cfs September 30 Notes: * Target flowrates are just below the confluence of Whiteoak Creek and the Nantahala River. ** The Threshold Bypass Whitewater Recreation Release is 2-hr @ 175 cfs. 5. At the same time, the Licensee will reduce the reservoir's minimum elevation by an additional three feet (nine feet total below the Normal Minimum Elevation) for the relevant time period as shown above. The newly Attachment B. LIP for the Nantahala Project.doc 15 Rev.: DRAFT 10115103 Attachment B - Low Inflow Protocol (LIP) for the Nantahala Project • modified minimum elevation is referred to as the Stage 3 Minimum Elevation. (Note: Nine feet represents 34% of the total 26.5-ft bandwidth provided by the Normal Operating Range). 6. The Licensee will directly notify the NGA President and the AW representative when Stage 3 reductions are implemented. If additional generation releases were scheduled to support whitewater races or other special events, the Licensee will include the event sponsor in this direct notification. The Licensee will also notify the NCDWR, NCWRC, USFWS and the USFS of these Stage 3 reductions and that the minimum flow from Whiteoak Creek Diversion Dam is at its Threshold Level. The Licensee will endeavor in good faith to provide at least 24 hours advance notification. • 7. The Licensee will update its website and telephone messages to account for the impacts of the above LIP on schedules for generation and bypass recreational releases and lake levels. State 4 Reductions 1. Upon a determination by the Licensee that the reservoir elevation cannot be maintained at or above the Stage 3 Minimum Elevation for the time of year specified above, the Licensee will reduce the minimum generation volume to a lower amount (referred to as the Stage 4 Minimum Generation Volume and expressed in MWH/wk) as determined below: Period Normal Min. Generation Volume (MWH/wk) Stage 4 Min. Generation Volume (MWH/wk) % Reduction From Normal Water Volume Used May 1 - Feb 29 2324 1162 50 Mar 1 - Mar 31 1453 290 80 Apr I - Apr 30 743 580 66.8 Note: The above reductions represent a four-hour per day reduction in generation from the normal schedules. This reduction will be split equally between the Licensee's dispatch periods and the scheduled generation releases to support downstream recreation. If any additional hours of generation releases were scheduled to support whitewater races or other special events, then those uses will be required to use the modified releases as noted above. The average water volume reduction for the 12-month period represented above is 52.8%. Attachment B. LIP for the Nantahala Project.doc 16 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the Nantahala Project is • • 2. At the same time, the Licensee will maintain the minimum flow release from Whiteoak Creek Diversion Dam at its Threshold Minimum Flow value of 2 cfs or inflow to Whiteoak Creek Pond, whichever is less. (Note: This is the same as the Stage 3 Whiteoak Creek Diversion Dam Minimum Flow). 3. At the same time, the Licensee will reduce the minimum flow release from the spill valves located on the Whiteoak Creek Penstock to a new combined flowrate (referred to as the Stage 4 Whiteoak Creek Penstock Combined Valve Flow and expressed in cfs) as determined below: Period Normal Total Min. Normal Combined Stage 4 Whiteoak % Reduction Flows in the Min. Flow From Creek Penstock From Normal Bypassed Reaches the Whiteoak Combined Valve Water Volume (cfs) Creek Penstock Flow (cfs) Used (*) Spill Valves (cfs) Nov 1 - May 16 8 6 50.0 31 Jun 1 - Oct 31 24 16 9 54.2 Notes: * % reductions include the 6 cfs minimum flow reduction implemented at Whiteoak Creek Diversion Dam. 4. At the same time, if recreation releases from the Nantahala Dam are scheduled during Stage 4 reductions, then the releases will be reduced as noted below: Attachment B. LIP for the Nantahala Project.doc 17 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the Nantahala Project r? Tainter Gate Normally Scheduled Stage 4 Duration and % Reduction From Release Duration and Target Target Flowrates (*) (hrs Normal Water Flowrates (*) (hrs and cfs) and cfs) Volume Used Spring Weekend Sat. - 6-hr release @ 250 cfs Sat. - 2-hr release @ 250 cfs 66.7 in April Sun. - 6-hr release@ 350 cfs Sun.- 2-hr release@ 350 cfs Summertime 3-hr release @ 250 cfs 2-hr release @ 175 cfs (**) 46.7 Afternoons between June 15 and August 31 Fall Weekend Sat. - 7-hr release @ 300 cfs Sat. - 3-hr release @ 300 cfs 55.6 between Sun. - 5-hr release @ 425 cfs, Sun. - 2-hr release @ 425 cfs, September 15 and 2-hr release @ 250 cfs 2-hr release @ 175 cfs (**) September 30 Notes: * Target flowrates are just below the confluence of Whiteoak Creek and the Nantahala River. ** The Threshold Bypass Whitewater Recreation Release is 2-hr @ 175 cfs. 0 5. At the same time, the Licensee will reduce the reservoir's minimum elevation by an additional three feet (twelve feet total below the Normal Minimum Elevation) for the relevant time period as shown above. The newly modified minimum elevation is referred to as the Stage 4 Minimum Elevation. (Note: Twelve feet represents 45% of the total 26.5-ft bandwidth provided by the Normal Operating Range). 6. The Licensee will directly notify the NGA President and the AW representative when Stage 4 reductions are implemented. If additional generation releases were scheduled to support whitewater races or other special events, the Licensee will include the event sponsor in this direct notification. The Licensee will endeavor in good faith to provide at least 24 hours advance notification. 7. The Licensee will update its website and telephone messages to account for the impacts of the above LIP on schedules for generation and bypass recreational releases and lake levels. State 5 Reductions 1. Upon a determination by the Licensee that the reservoir elevation cannot be maintained at or above the Stage 4 • Minimum Elevation for the time of year specified above, the Licensee will reduce the minimum generation Attachment B. LIP for the Nantahala Project.doc 18 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the Nantahala Project volume to a lower amount (referred to as the Stage 5 Minimum Generation Volume and expressed in • MWH/wk) as determined below: Period Normal Min. Generation Volume (MWH/wk) Stage 5 Min. Generation Volume (MWH/wk) % Reduction From Normal Water Volume Used May 1 - Feb 29 2324 872 62.5 Mar 1 - Mar 31 1453 290 80 Apr 1 - Apr 30 1743 290 83.4 Note: The above reductions represent a five-hour per day reduction in generation from the normal schedules in Apr - Feb, with only a four-hour reduction in Mar. March generation was kept at one hour per day to ensure some continued generation and flow in the main stem of the river. These reductions will be split equally between the Licensee's dispatch periods and the scheduled generation releases to support downstream recreation. If any additional hours of generation releases were scheduled to support whitewater races or other special events, then those uses will be required to use the modified releases as noted above. The average water volume reduction for the12-month period represented above is 64.8°/x. 2. At the same time, the Licensee will maintain the minimum flow release from Whiteoak Creek Diversion Dam at its Threshold Minimum Flow value of 2 cfs or inflow to Whiteoak Creek Pond, whichever is less. (Note: This is the same as the Stage 3 Whiteoak Creek Diversion Dam Minimum Flow). 3. At the same time, the Licensee will reduce the minimum flow release from the spill valves located on the Whiteoak Creek Penstock to a new combined flowrate (referred to as the Stage 5 Whiteoak Creek Penstock Combined Valve Flow and expressed in cfs) as determined below: • Attachment B. LIP for the Nantahala Project.doc 19 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the Nantahala Project • Period Normal Total Min. Normal Combined Stage 5 Whiteoak % Reduction Flows in the Min. Flow From Creek Penstock From Normal Bypassed Reaches the Whiteoak Combined Valve Water Volume (cfs) Creek Penstock Flow (cfs) Used O Spill Valves (cfs) Nov 1 - May 16 8 4 62.5 31 Jun 1 - Oct 31 24 16 6 66.7 Notes: * % reductions include the 6 cfs minimum flow reduction implemented at Whiteoak Creek Diversion Dam. 4. At the same time, if recreation releases from the Nantahala Dam are scheduled during Stage 5 reductions, then the releases will be reduced as noted below: • Tainter Gate Normally Scheduled Stage 5 Duration and % Reduction From Release Duration and Target Target Flowrates (*) (hrs Normal Water Flowrates (*) (hrs and cfs) and cfs) Volume Used Spring Weekend Sat. - 6-hr release @ 250 cfs Sat. - 4-hr release @ 175 cfs 80.6 in April Sun. - 6-hr release@ 350 cfs (**) Sun. - No release. Summertime 3-hr release @ 250 cfs 2-hr release @ 175 cfs (**) 46.7 Afternoons between June 15 and August 31 Fall Weekend Sat. - 7-hr release @ 300 cfs Sat. - 4-hr release @ 175 cfs 85.2 between Sun. - 5-hr release @ 425 cfs, (**) September 15 and 2-hr release @ 250 cfs Sun. - No release. September 30 Notes: * Target flowrates are just below the confluence of Whiteoak Creek and the Nantahala River. ** The Threshold Bypass Whitewater Recreation Release is 2-hr @ 175 cfs. 0 Attachment B. LIP for the Nantahala Project.doc 20 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the Nantahala Project 5. At the same time, the Licensee will reduce the reservoir's minimum elevation by an additional three feet • (fifteen feet total below the Normal Minimum Elevation) for the relevant time period as shown above. The newly modified minimum elevation is referred to as the Stage 5 Minimum Elevation. (Note: Fifteen feet represents 57% of the total 26.5-ft bandwidth provided by the Normal Operating Range). 6. The Licensee will directly notify the NGA President and the AW representative when Stage 5 reductions are implemented. If additional generation releases were scheduled to support whitewater races or other special events, the Licensee will include the event sponsor in this direct notification. The Licensee will endeavor in good faith to provide at least 24 hours advance notification. 7. The Licensee will update its website and telephone messages to account for the impacts of the above LIP on schedules for generation and bypass recreational releases and lake levels. Stage 6 Reductions and Beyond 1. Upon a determination by the Licensee that the reservoir elevation cannot be maintained at or above the Stage 5 Minimum Elevation, the Licensee will continue with the conditions as established by the Stage 5 reductions, except for Stage 6 and beyond: a. All Tainter gate releases for whitewater recreation in the Nantahala River Bypassed Reach are cancelled b. The Whiteoak Creek Penstock Combined Valve Flow will be maintained at the Threshold Minimum Flow of 2 cfs (November 1 through May 31) or 5 cfs (June I through October 31) c. The minimum generation volume for the May 1 through February 29 period will be reduced by an additional hour per day for each stage until it reaches 290 MWH/wk (i.e. one hour per day of generation, seven days per week). This reduction will be split equally between the Licensee's dispatch periods and the scheduled generation releases to support downstream recreation. d. The minimum lake elevation will be reduced by an additional three feet for each stage. 2. Once the minimum generation volume has been reduced to one hour per day, seven days a week for all parts of the year (i.e. 290 MWH/wk), all recreation releases in the Nantahala River Bypassed Reach have been cancelled and all minimum flows are being maintained at their Threshold Minimum Flow values, the minimum lake elevation requirement will no longer apply. • Attachment B. LIP for the Nantahala Project.doc 21 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the Nantahala Project 3. The Licensee will directly notify the NGA President and the AW representative when Stage 6 reductions and • each successive stage reductions are implemented. If additional generation releases were scheduled to support whitewater races or other special events, the Licensee will include the event sponsor in this direct notification. When the Threshold Minimum Flow values are reached for the Whiteoak Creek Penstock Combined Valve Flow (i.e. 2 cfs (November I through May 31) or 5 cfs (June 1 through October 31)), the Licensee will also notify the NCDWR, NCWRC, USFWS and the USFS of the reductions and that the minimum flow from the Whiteoak Creek Penstock Combined Valve Flow is at its Threshold Level. The Licensee will endeavor in good faith to provide at least 24 hours advance notification. 4. The Licensee will update its website and telephone messages to account for the impacts of the above LIP on schedules for generation and bypass recreational releases and lake levels. Recovery from the Low Inflow Protocol 1. When inflows have increased to a point where the Licensee can maintain lake level above the minimum elevation established in the previous stage reduction, operation of the project can begin transitioning out of the LIP. The transitioning procedure will follow the stage reductions outlined above in reverse order (i.e. "stage • increases" going from the last stage achieved back toward Stage 1 and then finally returning to normal operation). 2. The Licensee will directly notify the NGA President and the AW representative as the LIP stages are transitioned. If additional generation releases were scheduled to support whitewater races or other special events, the Licensee will include the event sponsor in this direct notification. The Licensee will endeavor in good faith to provide at least 24 hours advance notification. 3. The Licensee will directly notify the NCDWR, NCWRC, USFWS, USFS, the NGA President and the AW representative when lake levels have been restored to within the Normal Operating Range with a normal generation schedule, normal minimum flows in the bypassed reaches and a normal schedule for Tainter gate releases to support whitewater boating in the Nantahala River Bypassed Reach. If additional generation releases were scheduled to support whitewater races or other special events, the Licensee will include the event sponsor in this direct notification. 4. The Licensee will update its website and telephone messages to account for the impacts of the above LIP on schedules for generation and bypass recreational releases and lake levels. Attachment B. LIP for the Nantahala Project.doc 22 Rev.: DRAFT 10/15/03 r ? U • • Attachment B - Low Inflow Protocol (LIP) for the Nantahala Project Attachment B. LIP for the Nantahala Project.doc 23 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects • Introduction This Low Inflow Protocol (LIP) provides trigger points and procedures for how the East Fork Project (FERC # 2698) and West Fork Project (FERC # 2686) will be operated by the Licensee during periods of low inflow (i.e. periods when there is not enough water flowing into East Fork and West Fork project reservoirs to meet the normal needs for power generation, recreation flows, minimum flows, any on-reservoir water withdrawals and lake level maintenance). The protocol was developed on the basis that all parties with interests in water quantity will share the impact of low inflow. In general during periods of normal inflow, the Licensee will provide at least a prescribed number of hours per day of generation to support electric customer needs and the downstream flow needs in the main stem of the Tuckasegee River (typically during different periods each day), in addition to providing minimum flows in the Wolf Creek Bypassed Reach, scheduled Tainter gate releases from Glenville Dam for recreation and maintaining lake levels above certain prescribed minimum levels. During low inflow periods when the Licensee cannot meet all of the above conditions, it will reduce generation weekly by a prescribed amount per day during generation and/or recreation periods, along with corresponding weekly reductions in bypass flows, Tainter gate releases for recreation and minimum reservoir levels. In addition, any large (i.e. greater than or equal to one Million Gallons per Day (MGD) maximum instantaneous capacity) water intakes that are authorized on the East Fork or West Fork project reservoirs in the future will also have a reduction protocol incorporated into the easement documents that the Licensee uses to approve of such intakes. The incremental reduction of all water demands on the system will continue until inflows are restored to a point where the East Fork and West Fork lake levels return to their Normal Operating Ranges. Key Facts and Assumptions 1. Minimum Flows in Bypassed Stream Reaches - Assume the new license for the East Fork Project will include the following normal requirements for minimum releases from hydro project works into bypassed stream reaches to enhance water quality and/or aquatic species habitat: a. Wolf Creek Bypassed Reach - 6 cfs continuous release from a valve to be installed at Wolf Creek Dam. L J Attachment B. LIP for the WF and EF Projects.doc Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects 18 2. Minimum Flows in the Tuckasegee River Main Stem - Assume that the new licenses for the East Fork and West Fork projects will include the following minimum flow requirements for the main stem of the Tuckasegee River: a. 30 cfs combined minimum flow from December 1 through June 30 (assuming inflow to Tuckasegee Lake is greater than or equal to 20 cfs) and provided by the same means as the existing provision: 1) Continue existing minimum flow at Tuckasegee (20 cfs or inflow, whichever is less). 2) Continue existing minimum flow at Cedar Cliff (10 cfs from a valve at the hydro station during non-generation hours only). b. 55 cfs combined minimum flow from July 1 through November 30 (assuming inflow to Tuckasegee Lake is greater than or equal to 20 cfs) and provided by: 1) Continue existing minimum flow at Tuckasegee (20 cfs or inflow, whichever is less). 2) Increasing the valve capacity at Cedar Cliff to 35 cfs. When Cedar Cliff is generating, the valve is turned off. 3. Generation Releases for Angling and Boating Recreation Flows - Assume the new licenses for the East Fork and West Fork projects will include the following Normal Generation Schedule to Support Recreation on the main stem of the Tuckasgee River from the Cedar Cliff and Thorpe / Tuckasegee Powerhouses, with all releases being at or above the Best Efficiency Flows for the subject hydro units: a. Primary Angling Periods 1) Defined - The first weekend after Labor Day through the last weekend of October and April 1 st through the first weekend of June are defined as primary angling periods with actual flows at or below about 500 cfs being preferred (as measured at the reactivated or replaced USGS gage at Dillsboro). 2) During part of this time period, boating release schedules overlap. During this overlap period (the Saturday that occurs nine days before Memorial Day through the first weekend of June and Saturdays in September and October) the Normal Generation Schedule to Support Recreation • will be: Attachment B. LIP for the WF and EF Projects.doc 2 Rev.: DRAFT 10115103 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects • a) West Fork Release: Saturday and Sunday one week prior to Memorial Day Weekend, Saturday and Monday of Memorial Day Weekend and three of four Saturdays in September and October plus Tuesday, Friday Saturday for the period between Memorial Day Weekend through the first weekend in June for six hours, timed to arrive at the reactivated or replaced USGS gage at Dillsboro at approximately 10:30 AM. b) East Fork Release: Sunday of Memorial Day Weekend plus Wednesday, Thursday and Sunday for the period between Memorial Day Weekend to the first weekend in June and 1 of four Saturdays in September and October for six hours, timed to arrive at the reactivated or replaced USGS gage at Dillsboro at approximately 10:30 AM. b. Primary Boating Periods 1) Defined - Period after the first weekend of June through Labor Day, with actual flows at about 800 cfs (as measured at the reactivated or replaced USGS gage at Dillsboro) being preferred. 0 2) During this time period, the Normal Generation Schedule to Support Recreation for three out of four weeks will be: a) West Fork Release: Tuesday, Friday, Sunday for six hours, timed to arrive at the reactivated or replaced USGS gage at Dillsboro at approximately 10:30 AM. b) East Fork Release: Wednesday, Thursday, Saturday plus the Monday of Labor Day Weekend for six hours, timed to arrive at the reactivated or replaced USGS gage at Dillsboro at approximately 10:30 AM. 3) During this time period, the Normal Generation Schedule to Support Recreation for one out of four weeks will be: a) West Fork Release: Tuesday, Friday, Saturday for six hours, timed to arrive at the reactivated or replaced USGS gage at Dillsboro at approximately 10:30 AM. • Attachment B. LIP for the WF and EF Projects. doe 3 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects b) East Fork Release: Wednesday, Thursday, Sunday for six hours, timed to arrive at the reactivated or replaced USGS gage at Dillsboro at approximately 10:30 AM. c. Adjusting for Significant Baseline Flows - DPNA will check the river flow daily at the reactivated Dillsboro USGS Gage #03510500 (or a suitable replacement gage in this vicinity as determined by USGS) and by doing so, DPNA can project the expected river flow at the Dillsboro Gage during the next scheduled generation release to support recreation. When projected baseline river flow (i.e. the flow rate at the Dillsboro USGS gage without DPNA making the scheduled generation release to support recreation) is expected to average more than 500 cfs over the period from 10:30 AM to 4:30 PM, specific recreation flow releases from the DPNA hydropower stations can be reduced or stopped. • 4. Bypass Flow Releases for Recreation - Assume the new license for the West Fork Project will include requirements for the following scheduled releases from Glenville Dam into the West Fork (Glenville) Bypassed Reach to enhance downstream recreation: a. Release water for six hours per day for one weekend (Saturday and Sunday) per year in April. Target flowrate will be approximately 250 cfs each day and will begin at 10:00 AM. b. Provide five total afternoon releases perms for six hrs each, scheduled on days in the months of May through September. Target flowrate will be approximately 250 cfs each day and will begin at 10:00 AM. c. Target Flowrates - The target flowrates stated above are for flowrates at the put-in point. Actual release amounts from the Tainter gate need to be large enough that when combined with other tributary and accretion flows, the total is as close as possible to the target flowrates. 5. Normal Full Pond Elevation - also referred to simply as "full pond", this is the level of a reservoir that corresponds to the point at which water would first begin to spill from the reservoir's dam(s) if the Licensee took no action. This level corresponds to the lowest point along the top of the spillway (including any fuse plugs or flashboards) for reservoirs without flood gates and to the lowest point along the top of the flood gates for reservoirs that have them. To avoid confusion among the many reservoirs the Licensee operates, it has adopted the practice of referring to the Normal Full Pond Elevation for all of its reservoirs as equal to 100.0 ft relative. The Normal Full Pond Elevations for East Fork and West Fork Project reservoirs are: Attachment B. LIP for the WF and EF Projects.doc 4 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects • Hydro Project Reservoir Normal Full Pond Elevation (Ft above Mean Sea Level) East Fork Wolf Creek 3080.0 Tanasee Creek 3080.0 Bear Creek 2560.0 Cedar Cliff 2330.0 West Fork Glenville 3491.75 Tuckasegee 2278.75 6. Normal Minimum Elevation - the level of a reservoir (measured in ft above Mean Sea Level (msl) or feet relative to the full pond contour with 100.0 ft corresponding to full pond) that defines the bottom of the reservoir's Normal Operating Range for a given day of the year. If inflows and outflows to the reservoir are kept within some reasonable tolerance of the average or expected amounts, hydro project equipment is operating properly and no protocols for abnormal conditions have been implemented, reservoir level excursions below the Normal Minimum Elevation should not occur. 7. Normal Maximum Elevation - the level of a reservoir (measured in ft above Mean Sea Level (msl) or feet relative to the full pond contour with 100.0 ft corresponding to full pond) that defines the top of the reservoir's Normal Operating Range for a given day of the year. If inflows and outflows to the reservoir are kept within some reasonable tolerance of the average or expected amounts, hydro project equipment is operating properly and no protocols for abnormal conditions have been implemented, reservoir level excursions above the Normal Maximum Elevation should not occur. (Note: See Item 16 below for special drought storage considerations). 8. Normal Target Elevation - the level of a reservoir (measured in ft above Mean Sea Level (msl) or feet relative to the full pond contour with 100.0 ft corresponding to full pond) that the Licensee will endeavor in good faith to achieve, unless operating in the Low Inflow or Hydro Project Maintenance & Emergency Protocol. The Normal Target Elevation will fall within the Normal Operating Range, but it may not always be the average of the Normal Minimum and Normal Maximum Elevations. 9. Normal Operating Range for Lake Levels - the band of reservoir levels within which the Licensee • normally attempts to maintain a given reservoir that it operates on a given day. Each reservoir has its Attachment B. LIP for the WF and EF Projects. doc Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects • own specific Normal Operating Range, and that range is bounded by a Normal Maximum Elevation and a Normal Minimum Elevation. If inflows and outflows to the reservoir are kept within some reasonable tolerance of the average or expected amounts, hydro project equipment is operating properly and no protocols for abnormal conditions have been implemented, reservoir level excursions outside of the Normal Operating Range should not occur. (Note: See Item 16 below for special drought storage considerations). Assume the new licenses for the East Fork and West Fork Projects will include requirements for the following Normal Operating Ranges (Note: All lake levels are for the first day of the month. Levels for other days of the month can be determined by linear interpolation): a. Lake Glenville - Maintain the following Normal Operating Range: • Month Normal Minimum Elevation ft Normal Target Elevation (ft) Normal Maximum Elevation ft Jan 85 90 94 Feb 85 90 94 Mar 88 91 94 Apr 90 93 96 May 95 97 99 Jun 95 97 99 Jul 95 97 99 Au 93 95 98 Se 90 93 94 Oct 90 93 94 Nov 86 90 94 Dec 85 90 94 Attachment B. LIP for the WF and EF Projects.doc 6 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects • b. Tanasee Creek & Wolf Creek Lakes - Maintain the following Normal Operating Range: Month Normal Minimum Elevation (ft) Normal Target Elevation (ft) Normal Maximum Elevation (ft) Jan 83 85 92 Feb 83 85 92 Mar 83 85 92 Apr 86 88 96 May 90 93 100 Jun 90 93 100 Jul 90 93 100 Au 90 93 100 Se 90 93 100 Oct 90 93 100 Nov 86 88 96 Dec 83 85 92 c. Bear Creek Lake - Maintain the following Normal Operating Range: • • Month Normal Minimum Elevation (ft) Normal Target Elevation (ft) Normal Maximum Elevation (ft) Jan 91 93 98 Feb 91 93 98 Mar 91 93 98 Apr 92 95 98 May 92 98 100 Jun 92 98 100 Jul 92 98 100 Au 92 98 100 Se 92 98 100 Oct 92 96 98 Nov 92 95 98 Dec 92 94 98 Attachment B. LIP for the WF and EF Projects. doc 7 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects • d. Cedar Cliff Lake - Maintain the following Normal Operating Range: Month Normal Minimum Elevation (ft) Normal Target Elevation (ft) Normal Maximum Elevation (ft) Jan 96 98 100 Feb 96 98 100 Mar 96 98 100 Apr 96 98 100 May 96 98 100 Jun 96 98 100 Jul 96 98 100 Au 96 98 100 Se 96 98 100 Oct 96 98 100 Nov 96 98 100 Dec 96 98 100 e. Tuckasegee Lake - Maintain lake level as needed to provide minimum flow. 10. Net inflow - The cumulative inflow into a reservoir, usually expressed in ac-ft per week or ac-ft per month that is available for generation of hydroelectricity or for supplying non-generation water demands. Net inflow is the sum of tributary stream flow, groundwater runoff, precipitation falling on the reservoir surface, surface runoff and point-source discharge flows, less the sum of net on-reservoir water withdrawals, groundwater recharge and evaporation. 11. Normal Minimum Generation Volume - the minimum amount of net inflow, expressed in ac-ft per month, ac-ft per week or MWH of electric generation per week that is normally reserved in a hydro reservoir for release through the hydro turbines, producing hydroelectricity. For purposes of this low inflow protocol, the following are the Normal Minimum Generation Volumes for the East Fork and West Fork projects combined: • Attachment B. LIP for the WF and EF Projects.doc 8 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects 1 7-? Normal Minimum Generation Volume for East Fork and West Fork Projects Period Combined (MWH / week) Nov-Apr 893 May First two weeks only) 893 May (Week before Memorial Da only) 1158 May - Jun (Week after Memorial Da only) 1360 Jun-Au 1897 Sep (Labor Day through next Saturday) 1228 Se 2nd and 3rd weeks only) 1025 Se (4th week only) 1095 Oct First three weeks only) 1025 Oct (4th week only) 1095 Note: The above Normal Minimum Generation Volumes include both the energy produced by the hydro turbines during generation releases to support downstream recreation as well as energy produced during other periods of unit dispatch to meet the Licensee's electric customers' needs. To the maximum practical extent, when the weekly minimum generation volumes are reduced in the LIP, the reductions will be shared equally between the MWH/week that are reserved to make generation releases to support downstream recreation and generation releases (i.e. dispatch) to support electric customers' needs. 12. Threshold Minimum Flows - the minimum flow release amounts from hydro project works that may be necessary to sustain aquatic communities consistent with the resource management goals and objectives for the affected stream reaches. Since the normal minimum flow releases are for water quality and / or aquatic species habitat enhancements, the Threshold Minimum Flows are related to and lower than the normal minimum flow releases required by the FERC license. For the purposes of this protocol, it is assumed that the Threshold Minimum Flows are as follows: a. Wolf Creek Bypassed Reach - 2 cfs or inflow into Wolf Creek Lake, whichever is less, released from Wolf Creek Dam into the Wolf Creek Bypassed Reach. • Attachment B. LIP for the WF and EF Projects.doc 9 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects • b. Main Stem of the Tuckasegee River - the normal minimum flow provided from Tuckasegee Dam (i.e. 20 cfs or inflow into Tuckasegee Lake, whichever is less) plus the following minimum flows provided from the Cedar Cliff Spill Valve during periods of non-generation from Cedar Cliff Hydro Station: 1) From December 1 through June 30 - 6 cfs 2) From July 1 through November 30 - 11 cfs. 13. Simultaneous Reductions of Minimum Flows - when making reductions in minimum flows, the Licensee will make simultaneous reductions in the Wolf Creek Bypassed Reach and on the main stem with each stage of the Low Inflow Protocol. • E 14. Normal Minimum Non-Generation Volume - the minimum amount of net inflow, usually expressed in ac-ft per month or ac-ft per week that is normally reserved in a hydro reservoir to account for the portion of net inflow that leaves the reservoir without producing hydroelectricity. Examples include leakage from the main dam(s), diversion dam(s), penstock(s) or hydro turbine(s) into surface water; releases from flood, sluice and trash gates; and releases from minimum flow devices. 15. Low inflow period - any period when net inflow to a reservoir is not sufficient to maintain the reservoir's elevation above the Normal Minimum Elevation, while still providing the Normal Minimum Generation Volume, and the Normal Minimum Non-Generation Volume. 16. Drought Storage Considerations - the Licensee will be allowed to raise the reservoirs to levels above the Normal Maximum Elevation when water is available during periods of extended drought. 17. Threshold Bypass Whitewater Recreation Release - the duration and target flowrate below which Tainter gate releases in the bypassed reach to support whitewater boating can no longer achieve their intended purpose due to very short run times or too much contact with the riverbed. For the purpose of this protocol, the Threshold Bypass Whitewater Recreation Release is 200 cfs (target flowrate at the put-in point) for two hours duration. If there is a 2-hr release planned for each of two consecutive days, then it's preferable to have a single 4-hr release than two, 2-hr releases. Attachment B. LIP for the WF and EF Projects.doc 10 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects 0 18. Important Lake Levels for Tainter Gate and Minimum Flow O erp ation - Lake levels could possibly be lowered to the point where lake level is below the levels needed to allow bypass flows for recreation purposes or minimum flows. The important lake levels for these uses are: • Hydro Project Lake Relative Elevation of Relative Elevation at the Tainter Gate Sill Which Normal (ft with 100.0 = full Minimum Flow Device pond) No Longer Works (ft with 100.0 = full pond) East Fork Wolf Creek / Tanasee 81.0 81.0 (assumed) Creek Bear Creek 75.0 N/A Cedar Cliff 75.0 N/A West Fork Glenville 88.5 N/A Tuckasegee 97.0 (flashboards and 97.0 trash sluice gate) 19. Relative Storage Amounts Available - The following are the approximate surface areas and storage amounts available in each lake: • Hydro Project Lake Relative Elevation (ft) Lake Surface Area (ac) Storage Volume (ac-ft) East Fork Wolf Creek / Tanasee Creek 100.0 223 11,407 81.0 144 7600 Bear Creek 100.0 476 34,715 75.0 385 23,620 Cedar Cliff 100.0 121 6319 75.0 79 3742 West Fork Glenville 100.0 1462 72,000 88.5 12, 55,600 Attachment B. LIP for the WF and EF Projects.doc 11 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects • Hydro Project Lake Relative Elevation Lake Surface Storage Volume (ft) Area (ac-ft) (ac) Tuckasegee 100.0 8 35 97.0 - 15 Notes: a. Cedar Cliff Lake and Tuckasegee Lake have limited storage and the amount of water in the reservoirs changes very quickly, depending on operation of the upstream hydro station. Therefore, these two reservoirs do not provide reliable storage. b. Lake Glenville has roughly twice the storage volume per foot of lake depth as do Wolf Creek Lake, Tanasee Creek Lake and Bear Creek Lake combined. Therefore, lake level reduction increments of two ft for the larger East Fork reservoirs and one foot for West Fork (Lake Glenville) are appropriate. 0 20. Priority of Reducing Tainter Gate Releases for Whitewater Recreation - when making reductions in Tainter gate releases for whitewater recreation in the West Fork (Glenville) Bypassed Reach, the duration of the release should be reduced first until it reaches the above stated threshold duration, then the target flowrates should be reduced until the threshold flowrate is reached. 21. Relationship Between this Protocol and the Hydro Project Maintenance & Emergency Protocol HPMEP - The HPMEP outlines the general approach the Licensee will take under certain emergency and equipment failure and maintenance situations to continue practical and safe operation of the hydro project, to mitigate any related impacts to license conditions and to communicate with resource agencies and the affected parties. Under the HPMEP, temporary modifications of minimum flow releases in bypassed stream reaches, generation releases, Tainter gate releases for recreation and the lake level operating range are allowed. Lowering levels of East Fork and West Fork reservoirs caused by situations addressed under the HPMEP will not invoke implementation of this Low Inflow Protocol (LIP). Also, if the LIP has already been implemented at the time that a situation covered by the HPMEP is initiated, the Licensee will typically suspend implementation of the LIP until the HPMEP situation has been eliminated. The Licensee may however choose to continue with the LIP if desirable. • Attachment B. LIP for the WF and EF Projects.doc 12 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects 0 22. Organizational abbreviations include the NC Division of Water Resources (NCDWR), NC Wildlife Resources Commission (NCWRC), United States Forest Service (USFS), United States Fish & Wildlife Service (USFWS), the Tuckasegee Gorge Association (TGA), United States Geological Survey (USGS) and the American Whitewater Affiliation (AW). 23. Safety and Electric System Integrity are of Utmost Importance - Nothing in this protocol will limit the Licensee's ability to take any and all lawful actions necessary at its hydro projects to protect human health and safety, protect its equipment from major damage and ensure the stability of the regional electric grid. It is recognized that the Licensee may take the steps that are necessary to protect these things without prior consultation or notification. • • Attachment B. LIP for the WF and EF Projects.doc 13 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects 40 Procedure • • During low inflow periods as defined above, the Licensee will follow the protocol set forth below regarding adjustments to generation amounts, minimum flow releases, Tainter gate releases from the East Fork and West Fork projects for recreation, and minimum reservoir elevations and will make the adjustments set forth below on a weekly basis so as to equitably allocate the impacts of reduced water availability: State 1 Reductions: 1. Upon a determination by the Licensee that the reservoir elevations for either (a) Lake Glenville, or (b)Bear Creek Lake and Wolf Creek / Tanasee Creek lakes cannot be maintained at or above their Normal Minimum Elevations for the time of year specified above, the Licensee will reduce the minimum generation volume to a lower amount (referred to as the Stage 1 Minimum Generation Volume and expressed in MWH/wk) as determined below: Normal Min. Gen. Stage 1 Min. % Reduction From Volume for East Generation Volume Normal Water Volume Fork and West (MWH/wk) Used Period Fork Projects Combined (MWH / week) Nov-Apr 893 781 12.5 May (First two weeks only) 893 781 12.5 May (Week before Memorial 11.5 1158 1024 Day only) May - Jun (Week after 11. l 1360 1210 Memorial Day only) Jun-Aug 1897 1702 10.3 Sep (Labor Day through next 11.4 1228 1088 Saturday) Sep (2nd and 3rd weeks only) 1025 903 12.0 Sep (4th week only) 1095 967 11.7 Oct (First three weeks only) 1025 903 12.0 Oct (4th week only) 1095 967 11.7 Attachment B. LIP for the WF and EF Projects.doc 14 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects • Note: The above reductions in generation from the normal schedules represent a''/z hour per day reduction in hours of generation from each powerhouse for the Licensee's dispatch periods, except at Tennessee Creek, where the reduction will be one hour per day. For periods where downstream recreation flow releases are scheduled, the reduction represents '/2 hour per day reduction during the recreation flow release period per day. 2. At the same time, the Licensee will reduce the combined minimum flow in the Main Stem below Cedar Cliff and Tuckasegee as follows: • Stage I Total % Reduction Normal combined combined minimum From Normal Period minimum flow in flow in Main Stem Main Stem (cfs) (*)(cfs) Tuckasegee-20 Tuckasegee-20 13.3 December-June Cedar Cliff-10 Cedar Cliff-6 Tuckasegee-20 Tuckasegee-20 14.5 July-November Cedar Cliff-35 Cedar Cliff-27 Note: * Cedar Cliff Minimum Flow is at its Threshold Level in December through June. 3. At the same time, the Licensee will reduce the minimum flow release from Wolf Dam to 5 cfs. This reduction represents a 16.7% reduction. 4. At the same time, the Licensee will reduce the Bear Creek, and Wolf Creek / Tanasee Creek Lakes' Normal Minimum Elevations by two feet and Lake Glenville's Normal Minimum Elevation by one foot for the relevant time period as shown above. The newly modified minimum elevations are referred to as the Stage 1 Minimum Elevations. Note however that in order to maintain minimum flow in the Wolf Creek Bypassed Reach, this Stage 1 Minimum Elevation for the Wolf Creek / Tanasee Creek lakes must not be reduced below 81.0 ft. 5. At the same time, if recreation releases from the Glenville Dam are scheduled during Stage 1 reductions, then the releases will be reduced as noted below: Attachment B. LIP for the WF and EF Projects.doc 15 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects • Tainter Gate Release Normally Scheduled Duration and Target Flowrates (hrs and cfs) Stage 1 Duration and Target Flowrates (hrs and cfs) % Reduction From Normal Water Volume Used Spring Weekend Sat. - 6-hr release @ 250 cfs Sat. - 5-hr release @ 250 cfs 16.7 in April Sun. - 6-hr release@ 250 cfs Sun. - 5-hr release@ 250 cfs Summertime 6-hr release @ 250 cfs 5-hr release @ 250 cfs 16.7 Afternoons in May, June, July, August, September 6. The Licensee will directly notify NCDWR, NCWRC, USFWS and the USFS when Stage 1 reductions are implemented. If these Stage 1 reductions occur in December through June, the Licensee will note to the agencies that the minimum flow from Cedar Cliff is at its Threshold Level for this time of year. The • TGA President and the AW representative will be added to this notification when the angling and boating recreation flows or bypass flow releases for recreation are affected during this stage. The Licensee will endeavor in good faith to provide at least 24 hours advance notification. 7. The Licensee will update its website and telephone messages to account for the impacts of the above LIP on schedules for generation and bypass recreational releases and lake levels. Stage 2 Reductions 1. Upon a determination by the Licensee that the reservoir elevations for either (a) Lake Glenville, or (b) Bear Creek Lake and Wolf Creek / Tanasee Creek lakes cannot be maintained at or above the Stage 1 Minimum Elevations specified above, the Licensee will reduce the minimum generation volume to a lower amount (referred to as the Stage 2 Minimum Generation Volume and expressed in MWH/wk) as determined below: Attachment B. LIP for the WF and EF Projects.doc 16 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects • • • Normal Min. Gen. Stage 2 Min. % Reduction From Volume for East Generation Volume Normal Water Volume Fork and West (MWH/wk) Used Period Fork Projects Combined (MWH / week) Nov-Apr 893 670 25.0 May (First two weeks only) 893 670 25.0 May (Week before Memorial 23.1 1158 891 Day only) May - Jun (Week after 22.1 1360 1059 Memorial Day only) Jun-Aug 1897 1507 20.6 Sep (Labor Day through next 22.7 1228 949 Saturday) Sep (2nd and 3rd weeks only) 1025 780 23.9 Sep (4th week only) 1095 838 23.5 Oct (First three weeks only) 1025 780 23.9 Oct (4th week only) 1095 838 23.5 Note: The above reductions in generation from the normal represent a 1 hour per day reduction in hours of generation from each powerhouse for the Licensee's dispatch periods, except at Tennessee Creek, where the reduction will be 2 hours per day. For periods where downstream recreation flow releases are scheduled, the reduction represents 1 hour per day reduction during the recreation flow release period per day. 2. At the same time, the Licensee will reduce the combined minimum flow in the Main Stem below Cedar Cliff and Tuckasegee as follows: Attachment B. LIP for the WF and EF Projects.doc 17 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects • Stage 2 Total % Reduction Normal combined combined minimum From Normal Period minimum flow in flow in Main Stem Main Stem (cfs) (*)(cfs) Tuckasegee-20 Tuckasegee-20 13.3 December-June Cedar Cliff-10 Cedar Cliff-6 Tuckasegee-20 Tuckasegee-20 29 July-November Cedar Cliff-35 Cedar Cliff-19 Note: * Cedar Cliff Minimum Flow is at its Threshold Level in December through June. 3. At the same time, the Licensee will reduce the minimum flow release from Wolf Creek Dam to 4 cfs. This reduction represents a 33.3% reduction from normal minimum flow release. 4. At the same time, the Licensee will reduce the Bear Creek and Wolf Creek / Tanasee Creek Lakes' minimum elevations by two additional feet (four feet below the Normal Minimum Elevations) and Lake Glenville's minimum elevation by one additional foot (two feet below the Normal Minimum Elevation) for the relevant time period as shown above. The newly modified minimum elevations are referred to as the Stage 2 Minimum Elevations. Note however that in order to maintain minimum flow in the Wolf Creek Bypassed Reach, this Stage 2 Minimum Elevation for the Wolf Creek / Tanasee Creek lakes must not be reduced below 81.0 ft. • 5. At the same time, if recreation releases from the Glenville Dam are scheduled during Stage 2 reductions and if the Stage 2 Minimum Elevation for Lake Glenville is at or above 88.5 ft (i.e. the minimum lake level needed to allow releasing water from a Tainter gate), then the releases will be reduced as noted below; otherwise, any scheduled Tainter gate releases to support whitewater recreation in the West Fork (Glenville) Bypassed Reach will be cancelled: Attachment B. LIP for the WF and EF Projects.doc 18 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects ?J Tainter Gate Release Normally Scheduled Duration and Target Flowrates (hrs and cfs) Stage 2 Duration and Target Flowrates (hrs and cfs) % Reduction From Normal Water Volume Used Spring Weekend Sat. - 6-hr release @ 250 cfs Sat. - 4-hr release @ 250 cfs 33.3 in April Sun. - 6-hr release@ 250 cfs Sun.-4-hr release@ 250 cfs Summertime 6-hr release @ 250 cfs 4-hr release @ 250 cfs 33.3 Afternoons in May, June, July, August, September 6. The Licensee will directly notify the TGA President and the AW representative when Stage 2 reductions are implemented if the angling and boating recreation flows or bypass flow releases for recreation will be affected during this stage. The Licensee will endeavor in good faith to provide at least 24 hours advance notification. 7. The Licensee will update its website and telephone messages to account for the impacts of the above LIP on schedules for generation and bypass recreational releases and lake levels. Stage 3 Reductions 1. Upon a determination by the Licensee that the reservoir elevations for either (a) Lake Glenville, or (b) Bear Creek Lake and Wolf Creek / Tanasee Creek lakes cannot be maintained at or above the Stage 2 Minimum Elevations specified above, the Licensee will reduce the minimum generation volume to a lower amount (referred to as the Stage 3 Minimum Generation Volume and expressed in MWH/wk) as determined below: U Attachment B. LIP for the WF and EF Projects.doc 19 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects • • Normal Min. Gen. Stage 3 Min. % Reduction From Volume for East Generation Volume Normal Water Volume Fork and West (MWH/wk) Used Period Fork Projects Combined (MWH / week) Nov-Apr 893 558 37.5 May (First two weeks only) 893 558 37.5 May (Week before Memorial 34.6 1158 757 Day only) May - Jun (Week after 33.2 1360 909 Memorial Day only) Jun-Aug 1897 1311 30.9 Sep (Labor Day through next 34.1 1228 809 Saturday) Sep (2nd and 3rd weeks only) 1025 657 35.9 Sep (4th week only) 1095 710 35.2 Oct (First three weeks only) 1025 657 35.9 Oct (4th week only) 1095 710 35.2 Note: The above reductions in generation from the normal schedules represent a 1'/z hour per day reduction in hours of generation from each powerhouse for the Licensee's dispatch periods, except at Tennessee Creek, where the reduction will be 3 hours per day. For periods where downstream recreation flow releases are scheduled, the reduction represents 1'/z hours per day reduction during the recreation flow release period per day. Attachment B. LIP for the WF and EF Projects.doc 20 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects • 2. At the same time, the Licensee will reduce the combined minimum flow in the Main Stem below Cedar Cliff and Tuckasegee as follows: Stage 3 Total % Reduction Normal combined combined minimum From Normal Period minimum flow in flow in Main Stem Main Stem (cfs) (*)(cfs) Tuckasegee-20 Tuckasegee-20 13.3 December-June Cedar Cliff-10 Cedar Cliff-6 Tuckasegee-20 Tuckasegee-20 43.6 July-November Cedar Cliff-35 Cedar Cliff-11 Note: * Cedar Cliff Minimum Flow is at its Threshold Level all year. • • 3. At the same time, the Licensee will reduce the minimum flow release from Wolf Creek Dam to 3 cfs. This reduction represents a 50 % reduction from normal minimum flow release. 4. At the same time, the Licensee will reduce the Bear Creek and Wolf Creek / Tanasee Creek Lakes' minimum elevations by two additional feet (six feet below the Normal Minimum Elevations) and Lake Glenville's minimum elevation by one additional foot (three feet below the Normal Minimum Elevation) for the relevant time period as shown above. The newly modified minimum elevations are referred to as the Stage 3 Minimum Elevations. Note however that in order to maintain minimum flow in the Wolf Creek Bypassed Reach, this Stage 3 Minimum Elevation for the Wolf Creek / Tanasee Creek lakes must not be reduced below 81.0 ft. 5. At the same time, if recreation releases from the Glenville Dam are scheduled during Stage 3 reductions and if the Stage 3 Minimum Elevation for Lake Glenville is at or above 88.5 ft (i.e. the minimum lake level needed to allow releasing water from a Tainter gate), then the releases will be reduced as noted below; otherwise, any scheduled Tainter gate releases to support whitewater recreation in the West Fork (Glenville) Bypassed Reach will be cancelled: Attachment B. LIP for the WF and EF Projects.doc 21 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects • Tainter Gate Release Normally Scheduled Duration and Target Flowrates (*) (hrs and cfs) Stage 3 Duration and Target Flowrates (*) (hrs and cfs) % Reduction From Normal Water Volume Used Spring Weekend Sat. - 6-hr release @ 250 cfs Sat. - 3 hr release @ 250 cfs 50 in April Sun. - 6-hr release@ 250 cfs Sun.- 3-hr release@ 250 cfs Summertime 6-hr release @ 250 cfs 3-hr release @ 250 cfs 50 Afternoons in May, June, July, August, September 6. The Licensee will directly notify the TGA President and the AW representative when Stage 3 reductions are implemented if the angling and boating recreation flows or bypass flow releases for recreation will be affected during this stage. If these Stage 3 reductions occur in July through November, the Licensee will also notify the NCDWR, NCWRC, USFWS and the USFS that the minimum flow from Cedar Cliff is at is its Threshold Level year-round. The Licensee will endeavor in good faith to provide at least 24 hours advance notification. 7. The Licensee will update its website and telephone messages to account for the impacts of the above LIP on schedules for generation and bypass recreational releases and lake levels. Stap-e 4 Reductions 1. Upon a determination by the Licensee that the reservoir elevations for either (a) Lake Glenville, or (b) Bear Creek Lake and Wolf Creek / Tanasee Creek lakes cannot be maintained at or above the Stage 3 Minimum Elevations specified above, the Licensee will reduce the minimum generation volume to a lower amount (referred to as the Stage 4 Minimum Generation Volume and expressed in MWH/wk) as determined below: Attachment B. LIP for the WF and EF Projects.doc 22 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects • Normal Min. Gen. Stage 4 Min. % Reduction From Volume for East Generation Volume Normal Water Volume Fork and West (MWH/wk) Used Period Fork Projects Combined (MWH / week) Nov-Apr 893 446 50 May (First two weeks only) 893 446 50 May (Week before Memorial 46.2 1158 623 Day only) May - Jun (Week after 44.3 1360 758 Memorial Day only) Jun-Aug 1897 1116 41.2 Sep (Labor Day through next 45.5 1228 670 Saturday) Sep (2nd and 3rd weeks only) 1025 535 47.8 Sep (4th week only) 1095 581 46.9 Oct (First three weeks only) 1025 535 47.8 Oct (4th week only) 1095 581 46.9 Note: The above reductions in generation from the normal schedules represent a 2 hour per day reduction in hours of generation from each powerhouse for the Licensee's dispatch periods, except at Tennessee Creek, where the reduction will be 4 hours per day. For periods where downstream recreation flow releases are scheduled, the reduction represents 2 hours per day reduction during the recreation flow release period per day. 2. At the same time, the Licensee will maintain the combined minimum flow in the Main Stem below Cedar Cliff and Tuckasegee at the Threshold Levels as noted in Stage 3 above. 3. At the same time, the Licensee will reduce the minimum flow release from Wolf Creek Dam to the threshold minimum flow of 2 cfs for the Wolf Creek Bypassed Reach. This reduction represents a 66.7 % reduction from normal minimum flow release. Attachment B. LIP for the WF and EF Projects.doc 23 Rev.: DRAFT 10115103 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects 4. At the same time, the Licensee will reduce the Bear Creek and Wolf Creek / Tanasee Creek Lakes' minimum elevations by two additional feet (eight feet below the Normal Minimum Elevations) and Lake Glenville's minimum elevation by one additional foot (four feet below the Normal Minimum Elevation) for the relevant time period as shown above. The newly modified minimum elevations are referred to as the Stage 4 Minimum Elevations. Note however that in order to maintain minimum flow in the Wolf Creek Bypassed Reach, this Stage 4 Minimum Elevation for the Wolf Creek / Tanasee Creek lakes must not be reduced below 81.0 ft. 5. At the same time, if recreation releases from the Glenville Dam are scheduled during Stage 4 reductions and if the Stage 4 Minimum Elevation for Lake Glenville is at or above 88.5 ft (i.e. the minimum lake level needed to allow releasing water from a Tainter gate), then the releases will be reduced as noted below; otherwise, any scheduled Tainter gate releases to support whitewater recreation in the West Fork (Glenville) Bypassed Reach will be cancelled: E Tainter Gate Release Normally Scheduled Duration and Target Flowrates (hrs and cfs) Stage 4 Duration and Target Flowrates (hrs and cfs) % Reduction From Normal Water Volume Used Spring Weekend Sat. - 6-hr release @ 250 cfs Sat. - 4 hr release @ 250 cfs 66.7 in April Sun. - 6-hr release@ 250 cfs Sun.- No release Summertime 6-hr release @ 250 cfs 2-hr release @ 250 cfs 66.7 Afternoons in May, June, July, August, September 6. The Licensee will directly notify the TGA President and the AW representative when Stage 4 reductions are implemented if the angling and boating recreation flows or bypass flow releases for recreation will be affected during this stage. The Licensee will also notify the NCDWR, NCWRC, USFWS and the USFS that the minimum flow Wolf Creek Dam is at its Threshold Level. The Licensee will endeavor in good faith to provide at least 24 hours advance notification. 7. The Licensee will update its website and telephone messages to account for the impacts of the above LIP • on schedules for generation and bypass recreational releases and lake levels. Attachment B. LIP for the WF and EF Projects.doc 24 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects • Stage 5 Reductions • 1. Upon a determination by the Licensee that the reservoir elevations for either (a) Lake Glenville, or (b) Bear Creek Lake and Wolf Creek / Tanasee Creek lakes cannot be maintained at or above the Stage 4 Minimum Elevations specified above, the Licensee will reduce the minimum generation volume to a lower amount (referred to as the Stage 5 Minimum Generation Volume and expressed in MWH/wk) as determined below: Normal Min. Gen. Stage 5 Min. % Reduction From Volume for East Generation Volume Normal Water Volume Fork and West (MWH/wk) Used Period Fork Projects Combined (MWH / week) Nov-Apr 893 335 62.5 May (First two weeks only) 893 335 62.5 May (Week before Memorial 59.6 1158 467 Day only) May - Jun (Week after 58.2 1360 569 Memorial Day only) Jun-Aug 1897 921 51.5 Sep (Labor Day through next 56.8 1228 530 Saturday) Sep (2nd and 3rd weeks only) 1025 412 59.8 Sep (4th week only) 1095 453 58.7 Oct (First three weeks only) 1025 412 59.8 Oct (4th week only) 1095 453 58.7 Note: The above reductions in generation from the normal schedules represent a 2'/2 hour per day reduction in hours of generation from each powerhouse for the Licensee's dispatch periods, except at Tennessee Creek, where the reduction will be five hours per day. For periods where downstream recreation flow releases are scheduled, the reduction represents 2'/z hours per day reduction during the recreation flow release period per day. • Attachment B. LIP for the WF and EF Projects.doc 25 Rev.: DRAFT 10115103 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects • 2. At the same time, the Licensee will maintain the combined minimum flow in the Main Stem below Cedar Cliff and Tuckasegee at the Threshold Levels as noted in Stage 3 above. 3. At the same time, the Licensee will maintain the minimum flow release from Wolf Creek Dam at the Threshold Level of 2 cfs. 4. At the same time, the Licensee will reduce the Bear Creek and Wolf Creek / Tanasee Creek Lakes' minimum elevations by two additional feet (ten feet below the Normal Minimum Elevations) and Lake Glenville's minimum elevation by one additional foot (five feet below the Normal Minimum Elevation) for the relevant time period as shown above. The newly modified minimum elevations are referred to as the Stage 5 Minimum Elevations. Note however that in order to maintain minimum flow in the Wolf Creek Bypassed Reach, this Stage 5 Minimum Elevation for the Wolf Creek / Tanasee Creek lakes must not be reduced below 81.0 ft. 5. At the same time, if recreation releases from the Glenville Dam are scheduled during Stage 5 reductions and if the Stage 5 Minimum Elevation for Lake Glenville is at or above 88.5 ft (i.e. the minimum lake level needed to allow releasing water from a Tainter gate), then the releases will be reduced as noted below; otherwise, any scheduled Tainter gate releases to support whitewater recreation in the West Fork (Glenville) Bypassed Reach will be cancelled: Tainter Gate Release Normally Scheduled Duration and Target Flowrates (hrs and cfs) Stage 5 Duration and Target Flowrates (hrs and cfs) (*) % Reduction From Normal Water Volume Used Spring Weekend Sat. - 6-hr release @ 250 cfs Sat. - 4 hr release @ 200 cfs 73.3 in April Sun. - 6-hr release@ 250 cfs Sun.- No release Summertime 6-hr release @ 250 cfs 2-hr release @ 200 cfs 73.3 Afternoons in May, June, July, August, September Note: * Both the duration and flowrates for Tainter gate releases to support whitewater recreation are at their Threshold Levels. • Attachment B. LIP for the WF and EF Projects.doc 26 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects 6. The Licensee will directly notify the TGA President and the AW representative when Stage 5 reductions • are implemented if the angling and boating recreation flows or bypass flow releases for recreation will be affected during this stage. The Licensee will endeavor in good faith to provide at least 24 hours advance notification. 7. The Licensee will update its website and telephone messages to account for the impacts of the above LIP on schedules for generation and bypass recreational releases and lake levels. State 6 Reductions and Beyond 1. Upon a determination by the Licensee that the reservoir elevations for either (a) Lake Glenville, or (b) Bear Creek Lake and Wolf Creek / Tanasee Creek lakes cannot be maintained at or above the Stage 5 Minimum Elevations specified above, the Licensee will reduce the minimum generation volume to a lower amount (referred to as the Stage 6 Minimum Generation Volume and expressed in MWH/wk) as determined below. Also note that for all stages beyond Stage 6, the Minimum Generation Volumes will stay constant at this Stage 6 level: • • Attachment B. LIP for the WF and EF Projects.doc 27 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects • t Normal Min. Gen. Stage 6 Min. % Reduction From Volume for East Generation Volume Normal Water Volume Fork and West (MWH/wk) Used Period Fork Projects Combined (MWH / week) Nov-Apr 893 223 75 May (First two weeks only) 893 223 75 May (Week before Memorial 67.4 1158 378 Day only) May - Jun (Week after 63.5 1360 496 Memorial Day only) Jun-Aug 1897 725 61.8 Sep (Labor Day through next 68.2 1228 391 Saturday) Sep (2nd and 3rd weeks only) 1025 290 71.8 Sep (4th week only) 1095 324 70.4 Oct (First three weeks only) 1025 290 71.8 Oct (4th week only) 1095 324 70.4 2. If recreation releases from the Glenville Dam are scheduled during Stage 6 and beyond, they will be held constant at the Threshold Levels as noted in the Stage 5 reductions above until the reduced minimum lake elevation for Lake Glenville falls below 88.5 ft (i.e. the minimum lake level needed to allow releasing water from a Tainter gate), at which point the releases will be cancelled. 3. At the same time, the Licensee will maintain the combined minimum flow in the Main Stem below Cedar Cliff and Tuckasegee at the threshold minimum flows as noted in Stage 3 above. 4. Once the minimum generation has been reduced to Stage 6 and beyond, all Glenville Dam Tainter gate releases for recreation have been cancelled and all main stem minimum flows are being maintained at the threshold minimum flows, the minimum lake elevation requirements for Lake Glenville and Bear Creek • Lake will no longer apply. Note however that in order to maintain minimum flow in the Wolf Creek Attachment B. LIP for the WF and EF Projects.doc 28 Rev.: DRAFT 10/15/03 Attachment B - Low Inflow Protocol (LIP) for the West Fork and East Fork Projects • Bypassed Reach, the minimum elevation for Wolf Creek / Tanasee Creek lakes must not be reduced below 81.0 ft. 5. The Licensee will update its website and telephone messages to account for the impacts of the above LIP on schedules for generation and bypass recreational releases and lake levels. Recovery from the Low Inflow Protocol 1. When inflows have increased to a point where the Licensee can maintain lake level above the minimum elevation established in the previous stage reduction, operation of the projects can begin transitioning out of the LIP. The transitioning procedure will follow the stage reductions outlined above in reverse order (i.e. "stage increases" going from the last stage achieved back toward Stage 1 and then finally returning to normal operation). 2. The Licensee will perform the direct notifications as identified in each stage above as the stages are transitioned. 3. The Licensee will directly notify the NCDWR, NCWRC, USFWS, USFS, and, if required, the TGA President and the AW representative when lake levels have been restored to within the Normal Operating Range with a normal generation schedule, normal minimum flows in the bypassed reaches and a normal schedule for Tainter gate releases to support whitewater boating. 4. The Licensee will update its website and telephone messages to account for the impacts of the above LIP on schedules for generation and bypass recreational releases and lake levels. • Attachment B. LIP for the WF and EF Projects.doc 29 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the Nantahala Project Introduction • Under some emergency and equipment failure and maintenance situations, certain license conditions may be impractical to meet or may need to be suspended or modified to avoid taking unnecessary risks. The purpose of this protocol is to define the most likely situations of this type for the Nantahala Project (FERC # 2692), identify the potentially impacted license conditions and outline the general approach that the Licensee will take to mitigate the impacts to license conditions and to communicate with the resource agencies and affected parties. Note: Due to the potential variability of these abnormal situations, this protocol is not intended to give an exact step-by-step solution path. It will however provide basic expectations for the Licensee's approach to dealing with the situation. Specific details will vary and will be determined on a case-by-case basis as the protocol is being enacted. Key Facts and Assumptions 1. Dicks Creek - Dicks Creek will continue to be free-flowing with inflow into the pond formed by Dicks Creek Diversion Dam being equal to the outflow at the base of the dam. No water will be diverted into the penstock 0 at Dicks Creek Diversion Dam. 2. Minimum Flows in Bypassed Stream Reaches - Assume the new license for this project will include the following requirements for minimum releases from hydro project works into bypassed stream reaches to enhance water quality and/or aquatic species habitat (except during periods of low inflow covered by a low inflow protocol): Nantahala River Bypassed Reach 1) Minimum Flow Valve #1 -Maintain the existing minimum flow valve capable of releasing up to 8 cfs from the Whiteoak Creek Penstock into Dicks Creek to provide flows in the Nantahala River Bypassed Reach. 2) Minimum Flow Valve #2 - Install an additional minimum flow valve capable of releasing up to 8 cfs from the Whiteoak Creek Penstock into Dicks Creek to provide flows in the Nantahala River Bypassed Reach. 3) From the two minimum flow valves located on the Whiteoak Creek Penstock, provide a total of the . following releases into Dicks Creek to provide flows in the Nantahala River Bypassed Reach: Attachment C. HPMEP for the Nantahala Project.doc 1 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the Nantahala Project • a) From November 1 through May 31, 8 cfs. b) From June 1 through October 31, 16 cfs. b. Whiteoak Creek Bypassed Reach 1) Whiteoak Creek Diversion Dam - Provide 8 cfs or stream flow, whichever is less, from the Whiteoak Creek Diversion Dam into the Whiteoak Creek Bypassed Reach from January 1 through December 31. 3. Normal Generation Releases for Recreation - Assume the new license for this project will include the following requirements for a Normal Generation Schedule to Support Recreation at the Nantahala Powerhouse, with all releases being at or above the Best Efficiency Flow for the Nantahala Hydro Unit: a. 2°d Monday in March through March 31 - 10:00 am to 3:00 pm, seven days per week b. April - 10:00 am to 4:00 pm, seven days per week c. May through Labor Day - 9:00 am to 5:00 pm, seven days per week, plus provide one additional hour to the schedule (i.e. 9:00 am to 6:00 pm) on both the Saturday and Sunday before Memorial Day and Labor Day d. September after Labor Day - 10:00 am to 4:00 pm Sunday through Friday, 9:00 am to 5:00 pm Saturday e. October- 10:00 am to 3:00 pm Sunday through Friday and 9:00 am to 5:00 pm Saturday. 4. Other Prescribed Generation Releases - Assume the new license for this project will also include the following requirements for prescribed generation releases in addition to the above Normal Generation Schedule to Support Recreation: a. Whitewater Races - Provide up to 70 hrs per year of generation releases (all at or above the Best Efficiency Flow for the Nantahala Hydro Unit) to support established National, Southeastern Regional or State Level Whitewater Races. To the maximum practical extent, releases will be integrated with the normal release schedule so that additional release hours beyond the normal release schedule are not needed. b. Other Special Events - Other non-race requests for special generation releases that require additional generation hours above the total number of hours in any given month in the Normal Generation Schedule • to Support Recreation will be handled on a case-by-case basis. To the maximum practical extent, releases Attachment C. HPMEP for the Nantahala Project.doc 2 Rev.: DRAFT 10115103 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the Nantahala Project will be integrated with the normal release schedule so that additional release hours beyond the normal • release schedule are not needed. 5. Bypass Flow Releases for Recreation - Assume the new license for this project will include requirements for scheduled releases from Nantahala Dam into the Nantahala River Bypassed Reach to enhance downstream recreation: a. Spring Weekend - Release water for six hours per day for one weekend (Saturday and Sunday) per year, scheduled for the last weekend in April. Target flowrates will be approximately 250 cfs on Saturday and approximately 350 cfs on Sunday. Releases will be timed to reach the confluence of Whiteoak Creek with the Nantahala River (i.e. approximately 5.8 river miles downstream of Nantahala Dam) at approximately 10:00 am. b. Summer Afternoons - Provide four total afternoon releases per year for three hrs each at a target flowrate of approximately 250 cfs, scheduled between June 15 and August 31. Releases will be timed to reach the confluence of Whiteoak Creek with the Nantahala River (i.e. approximately 5.8 river miles downstream of Nantahala Dam) at approximately 4:00 pm. c. Fall Weekend - Release water for seven hours per day for one weekend per year, scheduled between September 15 and September 30. Releases will be for seven hours at a target flowrate of approximately 300 cfs on Saturday; and five hours at a target flowrate of approximately 425 cfs and two hours at a target flowrate of approximately 250 cfs on Sunday. Releases will be timed to reach the confluence of Whiteoak Creek with the Nantahala River (i.e. approximately 5.8 river miles downstream of Nantahala Dam) at approximately 10:00 am. d. Target Flowrates - The target flowrates stated above are for flowrates immediately below the confluence of Whiteoak Creek with the Nantahala River (i.e. approximately 5.8 river miles downstream of Nantahala Dam). Actual release amounts from the Tainter gates need to be large enough that when combined with other tributary and accretion flows, the total is at or above the approximate target flowrates. 6. Normal Operating Range for Lake Levels - Assume the new license for this project will include the following requirements for a Normal Operating Range of lake levels: Attachment C. HPMEP for the Nantahala Project.doc 3 Rev.: DRAFT 10115103 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the Nantahala Project • Month Normal Minimum Elevation (ft) Normal Target Elevation (ft) Normal Maximum Elevation (ft) Jan 73 78 83 Feb 76 83 88 Mar 78 88 93 Apr 85 93 98 May 93 97 99.5 Jun 93 97 99.5 Jul 93 97 99.5 Au 91 96 99.5 Se 88 93 98 Oct 83 88 93 Nov 78 83 88 Dec 73 78 83 Note: The elevations above are for the 1st day of the month. Elevations for other days of the month can be determined by linear interpolation. 7. Most Likely Situations - the following table identifies the assumed most likely situations when this protocol 0 will be enacted and the license conditions that would most likely be impacted: L ? Potentially Impacted License Conditions Situation Indications Min. Generation Normal Tainter Gate Flows in Releases for Operating Releases for Bypassed Recreation Range for Lake Recreation Stream Levels Reaches Hydro Unit Maintenance will require X X Outage hydro unit shutdown. Outage of Maintenance will require X Whiteoak Creek partial or full dewatering Penstock or of the Whiteoak Creek Diversion Dam Penstock or interruption of scheduled continuous minimum releases from Whiteoak Creek Attachment C. HPMEP for the Nantahala Project.doc 4 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the Nantahala Project • Potentially Impacted License Conditions Situation Indications Min. Generation Normal Tainter Gate Flows in Releases for Operating Releases for Bypassed Recreation Range for Lake Recreation Stream Levels Reaches Diversion Dam Outage of Maintenance will require X X Tainter Gates at rendering one or more Nantahala Dam Tainter gates inoperable. Dam Safety Condition A or B (i.e. X X X X Emergency Nantahala Dam failure has occurred, is imminent or a potentially hazardous situation exists) is declared per Emergency Action Plan or other dam safety concern is identified. Voltage or Voltage or capacity X X X Capacity conditions on the electric Emergency grid in the DPNA system or the larger regional electric grid cause instability and electric system failure has occurred or is imminent. 8. Returning to Normal - All of the above situations can impact the Licensee's ability to operate the hydro project in its most efficient and safest manner for power production. The Licensee will therefore endeavor in good faith to repair existing hydro project equipment and facilities and return them to service within a reasonable period of time, commensurate with the severity of the equipment / facility repair requirements and provided that the repairs are economically justified and funds are available for the repairs. • Attachment C. HPMEP for the Nantahala Project.doc 5 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the Nantahala Project 9. Incidental Outages - outages of hydro project works that are very brief in nature or that require minimal if any • deviation from normal license conditions. For the purposes of this protocol, outages of 48 hrs or less duration or that do not require deviation from any license conditions related to minimum flows in bypassed stream reaches or the main stem of the river, flow releases for whitewater recreation or the Normal Operating Ranges for lake levels are considered Incidental Outages and, except for the identified notifications for Incidental Outages that impact minimum flows, are exempt from the requirements of this protocol. 10. Notification Guidance a. Planned Maintenance - once a likely maintenance schedule has been established, the Licensee will endeavor in good faith to provide as much advance notice as possible to the affected parties identified in this protocol. b. Unplanned Maintenance and Emergencies - it is not possible for the Licensee to assure any level of advance notice. For these situations, the Licensee will endeavor in good faith to inform the affected parties identified in this protocol within some reasonable amount of time after the situation has been • • stabilized. 11. Preparation for High Inflow Events - With modern forecasting, it is more possible than ever to see large precipitation events coming and to increase generation hours to reduce lake levels in order to mitigate the potential for spilling and downstream flooding. Typically, this type of advance action is taken from one to five days before the expected arrival of the storm. It is assumed that the Normal Operating Range of lake levels will include adequate flexibility (i.e. band width) to allow for this type of lake level reduction. If the final Normal Operating Range for lake levels does not provide adequate flexibility, this protocol will be revised to account for the high inflow event preparation situation. 12. Relationship Between this Protocol and the Low Inflow Protocol - The Low Inflow Protocol (LIP) provides for reductions in generation flows, minimum flows and recreation flow releases in bypasses and modification of the Normal Operating Range for lake levels when water demands on Nantahala Lake substantially exceed its net inflow. Except for an outage of the Whiteoak Creek Penstock or Diversion Dam or a stuck-open Tainter gate on Nantahala Dam, lowering levels of Nantahala Lake caused by situations addressed under this Hydro Project Maintenance & Emergency Protocol (HPMEP) will not invoke implementation of the LIP. Also, if the LIP has already been implemented at the time that a situation covered by this HPMEP is initiated, Attachment C. HPMEP for the Nantahala Project.doc 6 Rev.: DRAFT 10115103 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the Nantahala Project the Licensee will typically suspend implementation of the LIP until the HPMEP situation has been eliminated. • The Licensee may however choose to continue with the LIP if desirable. 13. Peak Recreation Season - the portion of the year when boating and fishing levels are at their highest. For the purposes of this protocol, this season is defined as April through October. 14. Critical Commercial Whitewater Recreation Periods - the portions of the Peak Recreation Season that have the highest impact on the commercial whitewater industry that depends on the hydro project. Loss of whitewater recreation flows for the duration of any of these periods could damage the stability of the whitewater recreation businesses that serve the area. For the purposes of this protocol, these periods are defined as (1) any weekend period (Saturday and Sunday plus any holidays that fall on Friday or Monday) between 9 am and 5 pm from Memorial Day weekend through September, (2) any period of seven or more consecutive days from June through September, (3) any period between 9 am and 5 pm from July 1 through August 15. 15. Critical Flow Period for Stream Fish - the portion of the year when fish in the streams affected by the hydro project most need minimum flows or can be most impacted by higher temperature water releases from the Tainter gates at Nantahala Dam. For the purposes of this protocol, the Critical Flow Period for Stream Fish is defined as June 1 through October 31. 16. Threshold Minimum Flows - the minimum flow release amounts from hydro project works that may be necessary to sustain aquatic communities consistent with the resource management goals and objectives for the affected stream reaches. Since the normal minimum flow releases are for water quality and / or aquatic species habitat enhancements, the Threshold Minimum Flows are related to and lower than the normal minimum flow releases required by the FERC license. For the purposes of this protocol, it is assumed that the Threshold Minimum Flows are as follows: a. Whiteoak Creek Bypassed Reach - 2 cfs or inflow into Whiteoak Creek Pond, whichever is less, released from Whiteoak Creek Diversion Dam into the Whiteoak Creek Bypassed Reach. b. Nantahala River Bypassed Reach - The following combined flowrates released from the two Spill Valves on the Whiteoak Creek Penstock: • 1) From November 1 through May 31 - 2 cfs Attachment C. HPMEP for the Nantahala Project.doc 7 Rev.: DRAFT 10115103 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the Nantahala Project • 2) From June 1 through October 31 - 5 cfs. 17. Organizational abbreviations include the NC Division of Water Resources (NCDWR), NC Wildlife Resources Commission (NCWRC), United States Forest Service (USFS), United States Fish & Wildlife Service (USFWS), NC State Historic Preservation Office (NCSHPO), the Eastern Band of the Cherokee Indians (EBCI), the Nantahala Gorge Association (NGA), United States Geologic Survey (USGS) and the American Whitewater Affiliation (AW). 18. Voltage and Capacity Emerged - The electric transmission system serving the project area is the Duke Power-Nantahala Area (DPNA) system. The DPNA system is connected to the larger regional electric grid by: (a) Santeetlah 161 kV line connecting to the Tennessee Valley Authority (TVA) system and (b) two, 230 kV lines connecting to the Duke Power system near Lake Jocassee. If any one of these three electric transmission lines fails or if a major interruption within the DPNA system occurs, the entire DPNA system can become unstable due to inadequate capacity or voltage to support system demands. The result can include brown-outs or black-outs of large blocks of electric customers served by the DPNA system. Also, since the Licensee's hydro stations are the only electric generation sources that are directly tied to the DPNA system and they do not produce enough electric capacity to meet the DPNA system's instantaneous load, transmission system failures and overloads on the larger regional electric grid can also cause brown-outs and black-outs within the DPNA system. Therefore, for the purposes of this protocol, a voltage or capacity emergency shall exist when any of the following occur: a. The Santeetlah 161 kV line connecting the DPNA system to the TVA system is out of service b. Either of the two, 230 kV lines connecting the DPNA system to the Duke Power system is out of service c. The DPNA system has been split by an internal system failure d. A voltage or capacity emergency is declared by Duke Power's System Operating Center or Transmission Operating Center. 19. Safety and Electric System Integrity are of Utmost Importance - Nothing in this protocol will limit the Licensee's ability to take any and all lawful actions necessary at its hydro projects to protect human health and safety, protect its equipment from major damage and ensure the stability of the regional electric grid. It is recognized that the Licensee may take the steps that are necessary to protect these things without prior consultation or notification. Attachment C. HPMEP for the Nantahala Project.doc 8 Rev.: DRAFT 10115103 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the Nantahala Project • General Approach to Abnormal Situations A. Hydro Unit Outages 1. Mitigating Actions a. Planned Unit Outages 1) Scheduling - To the extent practical, the Licensee will avoid scheduling unit outages during the Peak Recreation Season (which also includes the Critical Flow Period for Stream Fish and the Critical Commercial Whitewater Recreation Periods), unless it is likely that the equipment condition will cause a forced unit outage if repairs are delayed. 2) Replacing Generation Recreation Releases - If the outage cannot avoid the Critical Commercial Whitewater Recreation Periods, then the Licensee will endeavor in good faith to replace a portion of the missed generation flows that are normally scheduled for recreation. This can be accomplished by providing at least some releases from the Tainter gates at Nantahala Dam. If replacement releases will be provided from a Tainter gate at Nantahala Dam and the water temperature in Nantahala Lake at a 0 depth corresponding to the Tainter gate sill is > 20° C, the Licensee will: a) Avoid scheduling replacement releases for more than two consecutive days. b) Monitor temperatures and dissolved oxygen (DO) levels in the Nantahala River Bypassed Reach during the releases from Nantahala Dam. c) Stop the releases if DO levels drop below 5 mg/1(i.e. the instantaneous minimum DO level specified by the NC State Water Quality Standards for trout waters) or if stressed or dead fish are observed. d) Replace any aquatic species mortalities that are identified. 3) Drawing Down Nantahala Lake - To minimize the impacts to its electric customers, the Licensee may choose to draw down Nantahala Lake using the hydro unit to a point where spillage from the dam is expected to be minimized during the outage. If the lake will be drawn down more than 60 ft below full pond and maintained at or below that elevation for 30 consecutive days or more, the Licensee will contract with a licensed archeologist to survey the lakebed at or below 60 ft of drawdown in the two locations where archaeological resources were identified in the relicensing cultural resource studies performed from 2000 - 2002. • Attachment C. HPMEP for the Nantahala Project.doc 9 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the Nantahala Project L J 4) Augmenting Stream Flow - If the outage impacts generation releases during the Critical Flow Period for Stream Fish, the Licensee will open the sluice gate at the Whiteoak Creek Diversion Dam and allow all the inflow into Whiteoak Creek Pond to flow into the Whiteoak Creek Bypassed Reach. This will prevent the excess inflow into Whiteoak Creek Pond from going through the penstocks and tunnels to Nantahala Lake and increase the stream flow in the Nantahala River downstream of its confluence with Whiteoak Creek. b. Forced Unit Outages 1) Replacing Generation Recreation Releases - If the outage impacts generation releases scheduled for recreation during the Critical Commercial Whitewater Recreation Periods, then the Licensee will endeavor in good faith to replace a portion of the missed generation flows that are normally scheduled for recreation. This can be accomplished by providing at least some releases from the Tainter gates at Nantahala Dam. If replacement releases will be provided from a Tainter gate at Nantahala Dam and the water temperature in Nantahala Lake at a depth corresponding to the Tainter gate sill is > 20° C, the Licensee will: • a) Avoid scheduling replacement releases for more than two consecutive days. b) Monitor temperatures and dissolved oxygen (DO) levels in the Nantahala River Bypassed Reach during the releases from Nantahala Dam. c) Stop the releases if DO levels drop below 5 mg/1(i.e. the instantaneous minimum DO level specified by the NC State Water Quality Standards for trout waters) or if stressed or dead fish are observed. d) Replace any aquatic species mortalities that are identified. 2) Augmenting Stream Flow - If the outage impacts generation releases during the Critical Flow Period for Stream Fish, the Licensee will open the sluice gate at the Whiteoak Creek Diversion Dam and allow all the inflow into Whiteoak Creek Pond to flow into the Whiteoak Creek Bypassed Reach. This will prevent the excess inflow into Whiteoak Creek Pond from going through the penstocks and tunnels to Nantahala Lake and increase the stream flow in the Nantahala River downstream of its confluence with Whiteoak Creek. 2. Communication with Resource Agencies and Affected Parties • a. Planned Unit Outages Attachment C. HPMEP for the Nantahala Project.doc 10 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the Nantahala Project 1) Direct Consultation - The Licensee will consult with the NCDWR, USFWS, NCWRC, USFS, the • NGA President and AW as soon as approximate schedule dates are determined, but at least 10 days prior to beginning the draw down of Nantahala Lake or the unit outage (if a drawdown of the lake will not be performed). If Nantahala Lake will be drawn down more than 60 ft below full pond and maintained at or below that elevation for 30 consecutive days or more, the Licensee will also consult with the NCSHPO and the EBCI concerning additional archaeological surveys of the lakebed at or below 60 ft of drawdown in the two locations where archaeological resources were identified in the relicensing cultural resource studies performed from 2000 - 2002. The Licensee will consider options suggested by the identified agencies and organizations that could lessen the impact of the outage on the environmental, cultural and human needs relative to the hydro project. 2) General Notification- At least 10 days before beginning the draw down of Nantahala Lake or the unit outage (if a drawdown of the lake will not be performed), the Licensee will add the appropriate messages to its public information website and/or its lake level phone system to inform the general public of the outage and draw down schedule. b. Forced Unit Outages is 1) Direct Notification - The Licensee will notify the NCDWR, USFWS, NCWRC, USFS, the NGA President and AW as soon as possible after the forced outage begins, but no longer than five days afterwards. 2) General Notification - As soon as possible after the forced outage occurs but no longer than five days afterwards, the Licensee will add the appropriate messages to its public information website and/or its lake level phone system to inform the general public of the outage and draw down schedule. 3) Direct Consultation - The Licensee will consult with the NCDWR, USFWS, NCWRC, USFS, the NGA President and AW as soon as possible after the forced outage begins, but no longer than 10 days afterwards. The Licensee will consider options suggested by the identified agencies and organizations that could lessen the impact of the outage on the environmental, cultural and human needs relative to the hydro project. U Attachment C. HPMEP for the Nantahala Project.doc 11 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the Nantahala Project • B. Whiteoak Creek Penstock & Diversion Dam Outa es 1. Mitigating Actions a. Planned Outages 1) Scheduling - To the extent practical, the Licensee will avoid scheduling outages during the Critical Flow Period for Stream Fish, unless it is likely that the equipment condition will cause a forced outage if repairs are delayed. 2) Replacing Lost Minimum Flows in the Bypasses - If the outage cannot avoid impacting minimum flows in bypasses during the Critical Flow Period for Stream Fish, then the Licensee will endeavor in good faith to replace a portion of the missed minimum flows in the affected bypass reaches. This can be accomplished by allowing additional spillage at the Whiteoak Creek Diversion Dam (if the outage will be for Whiteoak Creek Penstock repairs), allowing additional flows through the spill valves that release water from the Whiteoak Creek Penstock to Dicks Creek Bypassed Reach (if the outage will be for the sluice gate at Whiteoak Creek Diversion Dam) or by partially opening a Tainter gate at • Nantahala Dam. 3) Avoid Falling Below the Threshold Minimum Flows - To the extent practical, the Licensee will avoid falling below any of the Threshold Minimum Flows as noted above. If it is determined that 100% exceedance of the Threshold Minimum Flows cannot reasonably be achieved, the Licensee will work with the resource agencies to (a) monitor any potential aquatic species impacts in the affected stream segments and (b) replace any aquatic species mortalities that are identified. • b. Forced Outages 1) Replacing Lost Minimum Flows in the Bypasses - If the outage cannot avoid impacting minimum flows in bypasses during the Critical Flow Period for Stream Fish, then the Licensee will endeavor in good faith to replace a portion of the missed minimum flows in the affected bypass reaches. This can be accomplished by allowing additional spillage at the Whiteoak Creek Diversion Dam (if the outage will be for Whiteoak Creek Penstock repairs), allowing additional flows through the spill valves that release water from the Whiteoak Creek Penstock to Dicks Creek Bypassed Reach (if the outage will be for the sluice gate at Whiteoak Creek Diversion Dam) or by partially opening a Tainter gate at Nantahala Dam. (Note: If minimum flows in bypasses are to be supplemented by partially opening a Tainter gate at Nantahala Dam and the water temperature in Nantahala Lake at a depth corresponding Attachment C. HPMEP for the Nantahala Project.doc 12 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the Nantahala Project to the Tainter gate sill is > 20° C, the Licensee will complete the Direct Notification of resource agencies identified in item B.2.a below before partially opening a Tainter gate). 2) Avoid Falling Below the Threshold Minimum Flows - To the extent practical, the Licensee will avoid falling below any of the Threshold Minimum Flows as noted above. If it is determined that 100% exceedance of the Threshold Minimum Flows cannot reasonably be achieved, the Licensee will work with the resource agencies to (a) monitor any potential aquatic species impacts in the affected stream segments and (b) replace any aquatic species mortalities that are identified. 2. Communication with Resource Agencies and Affected Parties a. Planned Outages 1) Direct Consultation - The Licensee will consult with the NCDWR, USFWS, NCWRC and the USFS as soon as approximate schedule dates are determined, but at least 10 days prior to beginning the outage. The Licensee will consider options suggested by the identified agencies and organizations that could lessen the impact of the outage on the environmental and human needs relative to the hydro project. (Note that this communication with resource agencies is also required for Incidental Outages (see definitions) that impact minimum flows). b. Forced Outages 1) Direct Notification - The Licensee will notify the NCDWR, USFWS, NCWRC and the USFS as soon as possible after the forced outage begins, but no longer than five days afterwards. (Note that this communication with resource agencies is also required for Incidental Outages (see definitions) that impact minimum flows). If minimum flows in bypasses are to be supplemented by partially opening a Tainter gate at Nantahala Dam and the water temperature in Nantahala Lake at a depth corresponding to the Tainter gate sill is > 20° C, the Licensee will include the following information in the Direct Notification: a) The actual measured lake temperature at the depth corresponding to the Tainter gate sill b) The approximate total average daily flow in the Nantahala River Bypassed Reach just upstream of its confluence with the Nantahala Hydro Power Canal c) The approximate continuous release coming from the Whiteoak Creek Diversion Dam d) The approximate continuous release coming from the spill valve(s) installed in the Whiteoak Creek Penstock. e) The targeted amount of the Tainter gate release. Attachment C. HPMEP for the Nantahala Project.doc 13 Rev.: DRAFT 10115103 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the Nantahala Project is 2) Direct Consultation - The Licensee will consult with the NCDWR, USFWS, NCWRC and the USFS as soon as possible after the forced outage begins, but no longer than 10 days afterwards. The Licensee will consider options suggested by the identified agencies and organizations that could lessen the impact of the outage on the environmental and human needs relative to the hydro project. C. Tainter Gate Outages 1. Mitigating Actions a. Planned Outages 1) Scheduling - To the extent practical, the Licensee will avoid scheduling outages of the Tainter gates that conflict with dates scheduled for Tainter gate releases for whitewater boating in the Nantahala River Bypassed Reach, unless it is likely that the equipment condition will cause a forced outage if repairs are delayed. 2) Replacing Lost Whitewater Releases from the Tainter Gates - If the outage cannot avoid a loss of scheduled whitewater releases from the Tainter gates, then the Licensee will endeavor in good faith to reschedule the releases from the Tainter gates during the current Peak Recreation Season at Nantahala Dam to replace the missed releases that are normally scheduled for recreation. 3) Drawing Down Nantahala Lake - To minimize the impacts to its electric customers as well as to minimize the risk of performing the work, the Licensee may choose to draw down Nantahala Lake using the hydro unit to a point where spillage from the dam is expected to be minimized during the outage. If the lake will be drawn down more than 60 ft below full pond and maintained at or below that elevation for 30 consecutive days or more, the Licensee will contract with a licensed archeologist to survey the lakebed at or below 60 ft of drawdown in the two locations where archaeological resources were identified in the relicensing cultural resource studies performed from 2000 - 2002. b. Forced Outages 1) Replacing Lost Whitewater Releases from the Tainter Gates - If the outage will cause a loss of scheduled whitewater releases from the Tainter gates, then the Licensee will endeavor in good faith to reschedule the releases from the Tainter gates during the current Peak Recreation Season at Nantahala Dam to replace the missed releases that are normally scheduled for recreation. (Note: If the • rescheduled releases will occur during the Critical Flow Period for Stream Fish and the water Attachment C. HPMEP for the Nantahala Project.doc 14 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the Nantahala Project • temperature in Nantahala Lake at a depth corresponding to the Tainter gate sill is > 20° C, the Licensee will complete the Direct Notification of resource agencies identified in item C.2.a below before making the rescheduled Tainter gate release). 2) Drawing Down Nantahala Lake - To minimize the impacts to its electric customers as well as to minimize the risk of performing the work, the Licensee may choose to draw down Nantahala Lake using the hydro unit to a point where spillage from the dam is expected to be minimized during the outage. If the lake will be drawn down more than 60 ft below full pond and maintained at or below that elevation for 30 consecutive days or more, the Licensee will contract with a licensed archeologist to survey the lakebed at or below 60 ft of drawdown in the two locations where archaeological resources were identified in the relicensing cultural resource studies performed from 2000 - 2002. • 2. Communication with Resource Agencies and Affected Parties a. Planned Outages 1) Direct Consultation - If the outage will impact scheduled releases from the Tainter gates for whitewater boating in the Nantahala River Bypassed Reach, the Licensee will consult with the NCDWR, NCWRC, USFWS, USFS, the President of the NGA and AW as soon as approximate schedule dates are determined, but at least 10 days prior to beginning the outage. If Nantahala Lake will be drawn down more than 60 ft below full pond and maintained at or below that elevation for 30 consecutive days or more, the Licensee will also consult with the NCSHPO and the EBCI concerning additional archaeological surveys of the lakebed at or below 60 ft of drawdown in the two locations where archaeological resources were identified in the relicensing cultural resource studies performed from 2000 - 2002. The Licensee will consider options suggested by the identified agencies and organizations that could lessen the impact of the outage on the environmental, cultural and human needs relative to the hydro project. 2) General Notification - At least 10 days before beginning an outage that will cause a loss of scheduled whitewater releases from the Tainter gates, the Licensee will add the appropriate messages to its public information website and/or its lake level phone system to inform the general public of the outage and any rescheduled Tainter gate releases for whitewater recreation. • b. Forced Outages Attachment C. HPMEP for the Nantahala Project.doc 15 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the Nantahala Project 1) Direct Notification - If the outage will impact scheduled releases from the Tainter gates for 0 whitewater boating in the Nantahala River Bypassed Reach, the Licensee will notify the NCDWR, USFWS, NCWRC, USFS, the NGA President and AW as soon as possible after the forced outage begins, but no longer than five days afterwards. If the rescheduled Tainter gate releases will occur during the Critical Flow Period for Stream Fish and the water temperature in Nantahala Lake at a depth corresponding to the Tainter gate sill is > 20° C, the Licensee will include the following information in the Direct Notification: a) The actual measured lake temperature at the depth corresponding to the Tainter gate sill b) The approximate total average daily flow in the Nantahala River Bypassed Reach just upstream of its confluence with the Nantahala Hydro Power Canal c) The approximate continuous release coming from the Whiteoak Creek Diversion Dam d) The approximate continuous release coming from the spill valve(s) installed in the Whiteoak Creek Penstock e) The targeted amount (cfs), duration (hrs per day) and number of rescheduled days of the Tainter gate release. • 2) General Notification - If the outage will impact scheduled releases from the Tainter gates for whitewater boating in the Nantahala River Bypassed Reach, within five days following the start of the outage, the Licensee will add the appropriate messages to its public information website and/or its lake level phone system to inform the general public of the outage and any rescheduled Tainter gate releases for whitewater recreation. 3) Direct Consultation - If the outage will impact scheduled releases from the Tainter gates for whitewater boating in the Nantahala River Bypassed Reach, the Licensee will consult with the NCDWR, NCWRC, USFWS, USFS, the President of the NGA and AW as soon as possible after the outage occurs, but no longer than 10 days afterwards. If Nantahala Lake will be drawn down more than 60 ft below full pond and maintained at or below that elevation for 30 consecutive days or more, the Licensee will also consult with the NCSHPO and the EBCI concerning additional archaeological surveys of the lakebed at or below 60 ft of drawdown in the two locations where archaeological resources were identified in the relicensing cultural resource studies performed from 2000 - 2002. The Licensee will consider options suggested by the identified agencies and organizations that could lessen the impact of the outage on the environmental, cultural and human needs relative to the hydro • project. Attachment C. HPMEP for the Nantahala Project.doc 16 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the Nantahala Project • D. Dam Safety Emergency 1. Mitigating Actions a. Safety Must Come First - If a Condition A or B is declared per the Licensee's Emergency Action Plan, or other dam safety concerns arise, the Licensee may modify or suspend any license conditions immediately and for as long as necessary to restore the dam to a safe condition. 2. Communication with Resource Agencies and Affected Parties a. Direct Notification - Conducted strictly in accordance with the Licensee's Emergency Action Plan. In cases where dam safety concerns arise that are not a Condition A or B per the Licensee's Emergency Action Plan, consultation with resource agencies and affected parties will occur as soon as possible, after the dam safety concern arises. b. Once Dam Safety Conditions Have Stabilized - The Licensee will add the appropriate messages to its public information website and/or its lake level phone system to inform the general public of the situation and any expected return to normal operation. E. Voltage and Capacity Emergencies 1. Mitigating Actions a. Suspension of the Normal Operating Range for Lake Levels - If a voltage or capacity emergency (as defined above) occurs, the Licensee may modify or suspend lake level operating limitations immediately and for as long as necessary if doing so would allow additional hydro station operation that is needed to restore the electric grid to a stable condition. b. Conserving Water for Power Generation - If a voltage or capacity emergency (as defined above) occurs and if it is expected to continue for an extended period of time (e.g. two weeks or more), the Licensee may reduce minimum flows to the Threshold Minimum Flows (as defined above) and may modify or suspend any scheduled Tainter gate releases to support whitewater recreation in the Nantahala River Bypassed Reach if taking those actions is necessary to maintain the water inventory in Nantahala Lake. Attachment C. HPMEP for the Nantahala Project.doc 17 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the Nantahala Project 40 c. Replacing Lost Whitewater Releases from the Tainter Gates - If scheduled whitewater releases from the Tainter gates are lost, then once the emergency is over, the Licensee will endeavor in good faith to reschedule the releases from the Tainter gates during the current Peak Recreation Season at Nantahala Dam to replace the missed releases that are normally scheduled for recreation. 2. Communication with Resource Agencies and Affected Parties a. Direct Notification - The Licensee will notify the NCDWR, USFWS, NCWRC and the USFS as soon as possible following a deviation from license conditions for voltage or capacity emergency reasons (add the NGA President and AW if Tainter gate releases for recreational purposes are impacted), but no longer than five days afterwards. b. General Notification - Within five days following the start of the emergency deviation, the Licensee will add the appropriate messages to its public information website and/or its lake level phone system to inform the general public of the situation and any expected dates for return to normal operations. is c. Direct Consultation - The Licensee will consult with the NCDWR, USFWS, NCWRC and the USFS as soon as possible following a deviation from license conditions for voltage or capacity emergency reasons (add the NGA President and AW if Tainter gate releases for recreational purposes are impacted), but no longer than 10 days following such deviation. The Licensee will consider options suggested by the identified agencies and organizations that could lessen the impact of the emergency on the environmental, cultural and human needs relative to the hydro project. • Attachment C. HPMEP for the Nantahala Project.doc 18 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the West Fork and East Fork Projects • Introduction Under some emergency and equipment failure and maintenance situations, certain license conditions may be impractical to meet or may need to be suspended or modified to avoid taking unnecessary risks. The purpose of this protocol is to define the most likely situations of this type for the East Fork Project (FERC # 2698) and the West Fork Project (FERC # 2686), identify the potentially impacted license conditions and outline the general approach that the Licensee will take to mitigate the impacts to license conditions and to communicate with the resource agencies and affected parties. Note: Due to the potential variability of these abnormal situations, this protocol is not intended to give an exact step-by-step solution path. It will however provide basic expectations for the Licensee's approach to dealing with the situation. Specific details will vary and will be determined on a case-by-case basis as the protocol is being enacted. Key Facts and Assumptions 1. Minimum Flows in Bypassed Stream Reaches - Assume the new license for the East Fork Project will include the following normal requirements for minimum releases from hydro project works into the Wolf Creek Bypassed Reach to enhance water quality and/or aquatic species habitat: a. Wolf Creek Bypassed Reach - 6 cfs continuous release from a valve to be installed at Wolf Creek Dam. 2. Minimum Flows in the Tuckasegee River Main Stem - Assume that the new licenses for the East Fork and West Fork projects will include the following minimum flow requirements for the main stem of the Tuckasegee River: a. 30 cfs combined minimum flow from December 1 through June 30 (assuming inflow to Tuckasegee Lake is greater than or equal to 20 cfs) and provided by the same means as the existing provision: 1) Continue existing minimum flow at Tuckasegee (20 cfs or inflow, whichever is less). 2) Continue existing minimum flow at Cedar Cliff (10 cfs from a valve at the hydro station during non- generation hours only). Attachment C. HPMEP for the WF and EF Projects.doc 1 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the West Fork and East Fork Projects b. 55 cfs combined minimum flow from July 1 through November 30 (assuming inflow to Tuckasegee Lake • is greater than or equal to 20 cfs) and provided by: 1) Continue existing minimum flow at Tuckasegee (20 cfs or inflow, whichever is less). 2) Increasing the valve capacity at Cedar Cliff to 35 cfs. When Cedar Cliff is generating, the valve is turned off. 3. Generation Releases for Angling and Boating Recreation Flows - Assume the new licenses for the East Fork and West Fork projects will include the following Normal Generation Schedule to Support Recreation on the main stem of the Tuckasgee River from the Cedar Cliff and Thorpe / Tuckasegee Powerhouses, with all releases being at or above the Best Efficiency Flows for the subject hydro units: a. Primary Angling Periods 1) Defined -The first weekend after Labor Day through the last weekend of October and April 1st through the first weekend of June are defined as primary angling periods with actual flows at or below about 500 cfs being preferred (as measured at the reactivated or replaced USGS gage at Dillsboro). 2) During part of this time period, boating release schedules overlap. During this overlap period (the Saturday that occurs nine days before Memorial Day through the first weekend of June and Saturdays in September and October) the Normal Generation Schedule to Support Recreation will be: a) West Fork Release: Saturday and Sunday one week prior to Memorial Day Weekend, Saturday and Monday of Memorial Day Weekend and three of four Saturdays in September and October plus Tuesday, Friday Saturday for the period between Memorial Day Weekend through the first weekend in June for six hours, timed to arrive at the reactivated or replaced USGS gage at Dillsboro at approximately 10:30 AM. b) East Fork Release: Sunday of Memorial Day Weekend plus Wednesday, Thursday and Sunday for the period between Memorial Day Weekend to the first weekend in June and one of four Saturdays in September and October for six hours, timed to arrive at the reactivated or replaced USGS gage at Dillsboro at approximately 10:30 AM. • Attachment C. HPMEP for the WF and EF Projects.doc 2 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the West Fork and East Fork Projects • b. Primary Boating Periods 1) Defined - Period after the first weekend of June through Labor Day, with actual flows at about 800 cfs (as measured at the reactivated or replaced USGS gage at Dillsboro) being preferred. 2) During this time period, the Normal Generation Schedule to Support Recreation for three out of four weeks will be: a) West Fork Release: Tuesday, Friday, Sunday for six hours, timed to arrive at the reactivated or replaced USGS gage at Dillsboro at approximately 10:30 AM. b) East Fork Release: Wednesday, Thursday, Saturday plus the Monday of Labor Day Weekend for six hours, timed to arrive at the reactivated or replaced USGS gage at Dillsboro at approximately 10:30 AM. 3) During this time period, the Normal Generation Schedule to Support Recreation for one out of four weeks will be: a) West Fork Release: Tuesday, Friday, Saturday for six hours, timed to arrive at the reactivated or replaced USGS gage at Dillsboro at approximately 10:30 AM. b) East Fork Release: Wednesday, Thursday, Sunday for six hours, timed to arrive at the reactivated or replaced USGS gage at Dillsboro at approximately 10:30 AM. c. Adjustin for or Significant Baseline Flows - DPNA will check the river flow daily at the reactivated or replaced Dillsboro USGS Gage #03510500 and by doing so, DPNA can project the expected river flow at the Dillsboro Gage during the next scheduled generation release to support recreation. When projected baseline river flow (i.e. the flow rate at the Dillsboro USGS gage without DPNA making the scheduled generation release to support recreation) is expected to average more than 500 cfs over the period from 10:30 AM to 4:30 PM, specific recreation flow releases from the DPNA hydropower stations can be reduced or stopped. Attachment C. HPMEP for the WF and EF Projects.doc 3 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the West Fork and East Fork Projects 4. By2ass Flow Releases for Recreation - Assume the new license for the West Fork Project will include requirements for the following scheduled releases from Glenville Dam into the West Fork (Glenville) Bypassed Reach to enhance downstream recreation: a. Release water for six hours per day for one weekend (Saturday and Sunday) per year in April. Target flowrate will be approximately 250 cfs each day and will begin at 10:00 AM. b. Provide five total afternoon releases per year for six hrs each, scheduled on days in the months of May through September. Target flowrate will be approximately 250 cfs each day and will begin at 10:00 AM. c. Target Flowrates - The target flowrates stated above are for flowrates at the put-in point. Actual release amounts from the Tainter gate need to be large enough that when combined with other tributary and accretion flows, the total is as close as possible to the target flowrates. 5. Normal Operating Range for Lake Levels - Assume the new licenses for the East Fork and West Fork projects will include the following requirements for a Normal Operating Range of lake levels (Note: All lake levels are for the first day of the month. Levels for other days of the month can be determined by linear interpolation): 0 a. Lake Glenville - Maintain the following Normal Operating Range: Month Normal Minimum Elevation (ft) Normal Target Elevation (ft) Normal Maximum Elevation (ft) Jan 85 90 94 Feb 85 90 94 Mar 88 91 94 Apr 90 93 96 May 95 97 99 Jun 95 97 99 Jul 95 97 99 Au 93 95 98 Se 90 93 94 Oct 90 93 94 Nov 86 90 94 Dec 85 90 94 • Attachment C. HPMEP for the WF and EF Projects.doc 4 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the West Fork and East Fork Projects • b. Tanasee Creek & Wolf Creek Lakes - Maintain the following Normal Operating Range: Month Normal Minimum Elevation (ft) Normal Target Elevation (ft) Normal Maximum Elevation (ft) Jan 83 85 92 Feb 83 85 92 Mar 83 85 92 Apr 86 88 96 May 90 93 100 Jun 90 93 100 Jul 90 93 100 Au 90 93 100 Se 90 93 100 Oct 90 93 100 Nov 86 88 96 Dec 83 85 92 c. Bear Creek Lake - Maintain the following Normal Operating Range: U • Month Normal Minimum Elevation (ft) Normal Target Elevation (ft) Normal Maximum Elevation (ft) Jan 91 93 98 Feb 91 93 98 Mar 91 93 98 Apr 92 95 98 May 92 98 100 Jun 92 98 100 Jul 92 98 100 Au 92 98 100 Se 92 98 100 Oct 92 96 98 Nov 92 95 98 Dec 92 94 98 Attachment C. HPMEP for the WF and EF Projects.doc 5 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the West Fork and East Fork Projects • d. Cedar Cliff Lake - Maintain the following Normal Operating Range: Month Normal Minimum Elevation (ft) Normal Target Elevation (ft) Normal Maximum Elevation ft Jan 96 98 100 Feb 96 98 100 Mar 96 98 100 Apr 96 98 100 May 96 98 100 Jun 96 98 100 Jul 96 98 100 Au 96 98 100 Se 96 98 100 Oct 96 98 100 Nov 96 98 100 Dec 96 98 100 e. Tuckasegee Lake - Maintain lake level as needed to provide minimum flow. • 6. Most Likely Situations - the following table identifies the assumed most likely situations when this protocol will be enacted and the license conditions that would most likely be impacted: Potentially Impacted License Conditions Situation Indications Min. Generation Normal Tainter Gate Flows in Releases for Operating Releases for Bypassed Recreation Range for Lake Recreation Stream Levels Reaches Hydro Unit Maintenance will require X X Outage hydro unit shutdown. Outage of Spill Maintenance will require X Valve at Wolf interruption of scheduled Creek Dam, minimum releases from Spill Valve at normal locations Cedar Cliff Powerhouse or the Trash Sluice Gate at Tuckasegee Attachment C. HPMEP for the WF and EF Projects.doc 6 Rev.: DRAFT 10115103 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the West Fork and East Fork Projects • • Potentially Impacted License Conditions Situation Indications Min. Generation Normal Tainter Gate Flows in Releases for Operating Releases for Bypassed Recreation Range for Lake Recreation Stream Levels Reaches Dam Outage of Maintenance will require X X Tainter Gate at rendering the Tainter Glenville Dam gate inoperable. Dam Safety Condition A or B (i.e. X X X X Emergency dam failure has occurred, is imminent or a potentially hazardous situation exists) is declared per Emergency Action Plan or other dam safety concern is identified. Voltage or Voltage or capacity X X X Capacity conditions on the electric Emergency grid in the DPNA system or the larger regional electric grid cause instability and electric system failure has occurred or is imminent. 7. Returning to Normal - All of the above situations can impact the Licensee's ability to operate the hydro projects in their most efficient and safest manner for power production. The Licensee will therefore endeavor in good faith to repair existing hydro project equipment and facilities and return them to service within a reasonable period of time, commensurate with the severity of the equipment / facility repair requirements and provided that the repairs are economically justified and funds are available for the repairs. • Attachment C. HPMEP for the WF and EF Projects.doc 7 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the West Fork and East Fork Projects • 8. Incidental Outages - outages of hydro project works that are very brief in nature or that require minimal if any deviation from normal license conditions. For the purposes of this protocol, outages of 48 hrs or less duration or that do not require deviation from any license conditions related to minimum flows in bypassed stream reaches or the main stem of the river, flow releases for whitewater recreation or the Normal Operating Ranges for lake levels are considered Incidental Outages and, except for the identified notifications for Incidental Outages that impact minimum flows, are exempt from the requirements of this protocol. 9. Notification Guidance a. Planned Maintenance - once a likely maintenance schedule has been established, the Licensee will endeavor in good faith to provide as much advance notice as possible to the affected parties identified in this protocol. b. Unplanned Maintenance and Emergencies - it is not possible for the Licensee to assure any level of advance notice. For these situations, the Licensee will endeavor in good faith to inform the affected parties identified in this protocol within some reasonable amount of time after the situation has been • stabilized. 10. Preparation for High Inflow Events - With modern forecasting, it is more possible than ever to see large precipitation events coming and to increase generation hours to reduce lake levels in order to mitigate the potential for spilling and downstream flooding. Typically, this type of advance action is taken from one to five days before the expected arrival of the storm. It is assumed that the Normal Operating Ranges of lake levels will include adequate flexibility (i.e. band width) to allow for this type of lake level reduction. If the final Normal Operating Ranges for lake levels do not provide adequate flexibility, this protocol will be revised to account for the high inflow event preparation situation. 11. Relationship Between this Protocol and the Low Inflow Protocol - The Low Inflow Protocol (LIP) provides for reductions in generation flows, minimum flows and recreation flow releases in bypassed stream reaches and modification of the Normal Operating Ranges for lake levels when water demands on the lakes substantially exceed net inflow. Except for an outage of one of the normal means of providing minimum flows or a stuck-open Tainter gate on a dam, lowering lake levels caused by situations addressed under this Hydro Project Maintenance & Emergency Protocol (HPMEP) will not invoke implementation of the LIP. Also, if the LIP has already been implemented at the time that a situation covered by this HPMEP is initiated, the Licensee will typically suspend implementation of the LIP until the HPMEP situation has been eliminated. The Licensee may however choose to continue with the LIP if desirable. Attachment C. HPMEP for the WF and EF Projects.doc 8 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the West Fork and East Fork Projects • 12. Peak Recreation Season - the portion of the year when boating and fishing levels are at their highest. For the purposes of this protocol, this season is defined as April through October. 13. Critical Commercial Whitewater Recreation Periods - the portions of the Peak Recreation Season that have the highest impact on the commercial whitewater industry that depends on these hydro projects. Loss of whitewater recreation flows for the duration of any of these periods could damage the stability of the whitewater recreation businesses that serve the area. For the purposes of this protocol, these periods are defined as any period of six or more consecutive scheduled whitewater releases as noted in the Primary Boating Periods section above. • 14. Critical Flow Period for Stream Fish - the portion of the year when fish in the streams affected by the hydro projects most need minimum flows or can be most impacted by higher temperature water releases from the Tainter gates. For the purposes of this protocol, the Critical Flow Period for Stream Fish is defined as July 1 through November 30. 15. Threshold Minimum Flows - the minimum flow release amounts from hydro project works that may be necessary to sustain aquatic communities consistent with the resource management goals and objectives for the affected stream reaches. Since the normal minimum flow releases are for water quality and / or aquatic species habitat enhancements, the Threshold Minimum Flows are related to and lower than the normal minimum flow releases required by the FERC license. For the purposes of this protocol, it is assumed that the Threshold Minimum Flows are as follows: a. Wolf Creek Bypassed Reach - 2 cfs or inflow into Wolf Creek Lake, whichever is less, released from Wolf Creek Dam into the Wolf Creek Bypassed Reach. b. Main Stem of the Tuckasegee River - the normal minimum flow provided from Tuckasegee Dam (i.e. 20 cfs or inflow into Tuckasegee Lake, whichever is less) plus the following minimum flows provided from the Cedar Cliff Spill Valve during periods of non-generation from Cedar Cliff Hydro Station: 1) From December 1 through June 30 - 6 cfs 2) From July 1 through November 30 - 11 cfs. • Attachment C. HPMEP for the WF and EF Projects.doc 9 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the West Fork and East Fork Projects 16. Organizational abbreviations include the NC Division of Water Resources (NCDWR), NC Wildlife Resources Commission (NCWRC), United States Forest Service (USFS), United States Fish & Wildlife Service (USFWS), NC State Historic Preservation Office (NCSHPO), the Eastern Band of the Cherokee Indians (EBCI), the Tuckasegee Gorge Association (TGA), United States Geological Survey (USGS) and the American Whitewater Affiliation (AW). 17. Voltage and Capacity Emerged - The electric transmission system serving the project area is the Duke Power-Nantahala Area (DPNA) system. The DPNA system is connected to the larger regional electric grid by: (a) Santeetlah 161 kV line connecting to the Tennessee Valley Authority (TVA) system and (b) two, 230 kV lines connecting to the Duke Power system near Lake Jocassee. If any one of these three electric transmission lines fails or if a major interruption within the DPNA system occurs, the entire DPNA system can become unstable due to inadequate capacity or voltage to support system demands. The result can include brown-outs or black-outs of large blocks of electric customers served by the DPNA system. Also, since the Licensee's hydro stations are the only electric generation sources that are directly tied to the DPNA system and they do not produce enough electric capacity to meet the DPNA system's instantaneous load, transmission system failures and overloads on the larger regional electric grid can also cause brown-outs and black-outs within the DPNA system. Therefore, for the purposes of this protocol, a voltage or capacity • emergency shall exist when any of the following occur: a. The Santeetlah 161 kV line connecting the DPNA system to the TVA system is out of service b. Either of the two 230 kV lines connecting the DPNA system to the Duke Power system is out of service c. The DPNA system has been split by an internal system failure d. A voltage or capacity emergency is declared by Duke's System Operating Center (SOC) or Transmission Operating Center (TOC). 18. Safety and Electric System Integrity are of Utmost Importance - Nothing in this protocol will limit the Licensee's ability to take any and all lawful actions necessary at its hydro projects to protect human health and safety, protect its equipment from major damage and ensure the stability of the regional electric grid. It is recognized that the Licensee may take the steps that are necessary to protect these things without prior consultation or notification. • Attachment C. HPMEP for the WF and EF Projects.doc 10 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the West Fork and East Fork Projects • General Approach to Abnormal Situations A. Hydro Unit Outages 1. Mitigating Actions a. Planned Unit Outages 1) Scheduling - To the extent practical, the Licensee will avoid scheduling unit outages during the Peak Recreation Season (which also includes the Critical Commercial Whitewater Recreation Periods) and the Critical Flow Period for Stream Fish, unless it is likely that the equipment condition will cause a forced unit outage if repairs are delayed. 2) Replacing Generation Recreation Releases - If the outage cannot avoid the Critical Commercial Whitewater Recreation Periods, then the Licensee will endeavor in good faith to replace a portion of the missed generation flows that are normally scheduled for recreation. This can be accomplished by providing the normally scheduled release except by providing it from the other, non-outage hydro project (e.g. if Cedar Cliff Hydro was out of service, then the West Fork hydros could provide the scheduled release). If both the Cedar Cliff and the West Fork hydros are out of service simultaneously, then the Licensee will consider providing at least some releases from the Tainter gate at Cedar Cliff Hydro to replace the missed generation releases for recreation. Providing replacement releases from a Tainter gate at Glenville Dam would only be an option if one of the normally scheduled releases at Glenville Dam for whitewater recreation in the West Fork (Glenville) Bypassed Reach is occurring or if a Tainter gate release is needed anyway to control the level of Lake Glenville. If replacement releases will be provided from a Tainter gate at any of the dams and the water temperature in subject lake at a depth corresponding to the Tainter gate sill is > 20° C, the Licensee will: a) Avoid scheduling replacement releases for more than two consecutive days. b) Monitor temperatures and dissolved oxygen (DO) levels in any affected bypassed stream reach during the Tainter gate release. c) Stop the releases if DO levels drop below 5 mg/1(i.e. the instantaneous minimum DO level specified by the NC State Water Quality Standards for trout waters) or if stressed or dead fish are observed. • d) Replace any aquatic species mortalities that are identified. Attachment C. HPMEP for the WF and EF Projects.doc 11 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the West Fork and East Fork Projects 3) Drawing Down the Affected Lake - To minimize the impacts to its electric customers, the Licensee • may choose to draw down a lake using its hydro unit to a point where spillage from the dam is expected to be minimized during the outage. b. Forced Unit Outages 1) Replacing Generation Recreation Releases - If the outage impacts generation releases scheduled for recreation during the Critical Commercial Whitewater Recreation Periods, then the Licensee will endeavor in good faith to replace a portion of the missed generation flows that are normally scheduled for recreation. This can be accomplished by providing the normally scheduled release except by providing it from the other, non-outage hydro project (e.g. if Cedar Cliff Hydro was out of service, then the West Fork hydros could provide the scheduled release). If both the Cedar Cliff and the West Fork hydros are out of service simultaneously, then the Licensee will consider providing at least some releases from the Tainter gate at Cedar Cliff Hydro to replace the missed generation releases for recreation. Providing replacement releases from a Tainter gate at Glenville Dam would only be an option if one of the normally scheduled releases at Glenville Dam for whitewater recreation in the West Fork (Glenville) Bypassed Reach is occurring or if a Tainter gate release is needed anyway to control the level of Lake Glenville. If replacement releases will be provided from a Tainter gate at any of the dams and the water temperature in subject lake at a depth corresponding to the Tainter gate sill is > 20° C, the Licensee will: a) Avoid scheduling replacement releases for more than two consecutive days. b) Monitor temperatures and dissolved oxygen (DO) levels in any affected bypassed stream reach during the Tainter gate release. c) Stop the releases if DO levels drop below 5 mg/1(i.e. the instantaneous minimum DO level specified by the NC State Water Quality Standards for trout waters) or if stressed or dead fish are observed. d) Replace any aquatic species mortalities that are identified. 2. Communication with Resource Agencies and Affected Parties a. Planned Unit Outages 1) Direct Consultation - The Licensee will consult with the NCDWR, USFWS and the NCWRC as soon • as approximate schedule dates are determined, but at least 10 days prior to beginning any lake draw down or the unit outage (if a drawdown of the lake will not be performed). Add the TGA President Attachment C. HPMEP for the WF and EF Projects.doc 12 Rev.: DRAFT 10115103 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the West Fork and East Fork Projects and AW if the outage will affect the Normal Generation Schedule to Support Recreation as noted • above. The Licensee will consider options suggested by the identified agencies and organizations that could lessen the impact of the outage on the environmental, cultural and human needs relative to the hydro project. 2) General Notification- At least 10 days before beginning any lake draw down or the unit outage (if a drawdown of the lake will not be performed), the Licensee will add the appropriate messages to its public information website and/or its lake level phone system to inform the general public of the outage and draw down schedule. b. Forced Unit Outages 1) Direct Notification - The Licensee will notify the NCDWR, USFWS and the NCWRC as soon as possible after the forced outage begins, but no longer than five days afterwards. Add the TGA President and AW if the outage will affect the Normal Generation Schedule to Support Recreation as noted above. 2) General Notification - As soon as possible after the forced outage occurs but no longer than five days afterwards, the Licensee will add the appropriate messages to its public information website and/or its lake level phone system to inform the general public of the outage and draw down schedule. 3) Direct Consultation - The Licensee will consult with the NCDWR, USFWS and the NCWRC as soon as possible after the forced outage begins, but no longer than 10 days afterwards. Add the TGA President and AW if the outage will affect the Normal Generation Schedule to Support Recreation as noted above. The Licensee will consider options suggested by the identified agencies and organizations that could lessen the impact of the outage on the environmental, cultural and human needs relative to the hydro project. B. Outages of the Normal Means of Providing Minimum Flows 1. Mitigating Actions a. Planned Outages 1) Scheduling - To the extent practical, the Licensee will avoid scheduling outages during the Critical Flow Period for Stream Fish, unless it is likely that the equipment condition will cause a forced • outage if repairs are delayed. Attachment C. HPMEP for the WF and EF Projects.doc 13 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the West Fork and East Fork Projects • 2) Replacing Lost Minimum Flows - If the outage cannot avoid impacting minimum flows during the Critical Flow Period for Stream Fish, then the Licensee will endeavor in good faith to replace a portion of the missed minimum flows in the affected stream reaches. This can be accomplished by partially opening the Tainter gate at Wolf Creek Dam (if the outage will be for spill valve repairs at Wolf Creek Dam ----note that this is probably only a temporary replacement means, because repair of the valve will likely require drawdown of the lake below the Tainter gate sill), partially opening the Tainter gate at Cedar Cliff Dam or utilizing the larger, hand-controlled flashboard at Tuckesegee Dam. (Note: If minimum flows below Cedar Cliff are to be supplemented by partially opening a Tainter gate at Cedar Cliff Dam and the water temperature in Cedar Cliff Lake at a depth corresponding to the Tainter gate sill is > 20° C, the Licensee will complete the Direct Notification of resource agencies identified in item B.2.a below before partially opening a Tainter gate). 3) Avoid Falling Below the Threshold Minimum Flows - To the extent practical, the Licensee will avoid falling below any of the Threshold Minimum Flows as noted above. If it is determined that 100% exceedance of the Threshold Minimum Flows cannot reasonably be achieved, the Licensee will work with the resource agencies to (a) monitor any potential aquatic species impacts in the affected stream segments and (b) replace any aquatic species mortalities that are identified. E b. Forced Outages 1) Replacing Lost Minimum Flows in the Bypasses - If the outage cannot avoid impacting minimum flows during the Critical Flow Period for Stream Fish, then the Licensee will endeavor in good faith to replace a portion of the missed minimum flows in the affected stream reaches. This can be accomplished by partially opening the Tainter gate at Wolf Creek Dam (if the outage will be for spill valve repairs at Wolf Creek Dam ----note that this is probably only a temporary replacement means, because repair of the valve will likely require drawdown of the lake below the Tainter gate sill), partially opening the Tainter gate at Cedar Cliff Dam or utilizing the larger, hand-controlled flashboard at Tuckesegee Dam. (Note: If minimum flows below Cedar Cliff are to be supplemented by partially opening a Tainter gate at Cedar Cliff Dam and the water temperature in Cedar Cliff Lake at a depth corresponding to the Tainter gate sill is > 20° C, the Licensee will complete the Direct Notification of resource agencies identified in item B.2.a below before partially opening a Tainter gate). 2) Avoid Falling Below the Threshold Minimum Flows - To the extent practical, the Licensee will avoid falling below any of the Threshold Minimum Flows as noted above. If it is determined that • 100% exceedance of the Threshold Minimum Flows cannot reasonably be achieved, the Licensee will Attachment C. HPMEP for the WF and EF Projects.doc 14 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the West Fork and East Fork Projects • work with the resource agencies to (a) monitor any potential aquatic species impacts in the affected stream segments and (b) replace any aquatic species mortalities that are identified. 2. Communication with Resource Agencies and Affected Parties a. Planned Outages 1) Direct Consultation - The Licensee will consult with the NCDWR, USFWS and the NCWRC as soon as approximate schedule dates are determined, but at least 10 days prior to beginning the outage. Add the USFS if the outage will affect the spill valve at Wolf Creek Dam. The Licensee will consider options suggested by the identified agencies and organizations that could lessen the impact of the outage on the environmental and human needs relative to the hydro project. (Note that this communication with resource agencies is also required for Incidental Outages (see definitions) that impact minimum flows). b. Forced Outages 1) Direct Notification - The Licensee will notify the NCDWR, USFWS and the NCWRC as soon as • possible after the forced outage begins, but no longer than five days afterwards. Add the USFS if the outage will affect the spill valve at Wolf Creek Dam. (Note that this communication with resource agencies is also required for Incidental Outages (see definitions) that impact minimum flows). If minimum flows below Cedar Cliff are to be supplemented by partially opening a Tainter gate at Cedar Cliff Dam and the water temperature in Cedar Cliff Lake at a depth corresponding to the Tainter gate sill is > 20° C, the Licensee will include the following information in the Direct Notification: a) The actual measured lake temperature at the depth corresponding to the Tainter gate sill b) The approximate total average daily flow in the East Fork of the Tuckasegee River just upstream of its confluence with the West Fork of the Tuckasegee River c) The targeted amount of the Tainter gate release. 2) Direct Consultation - The Licensee will consult with the NCDWR, USFWS and the NCWRC as soon • as possible after the forced outage begins, but no longer than 10 days afterwards. Add the USFS if the outage will affect the spill valve at Wolf Creek Dam. The Licensee will consider options suggested by the identified agencies and organizations that could lessen the impact of the outage on the environmental and human needs relative to the hydro project. Attachment C. HPMEP for the WF and EF Projects.doc 15 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the West Fork and East Fork Projects C. Tainter Gate Outages • 1. Mitigating Actions a. Planned Outages 1) Scheduling - To the extent practical, the Licensee will avoid scheduling outages of the Tainter gate at Glenville Dam that conflicts with dates scheduled for Tainter gate releases for whitewater boating in the West Fork (Glenville) Bypassed Reach, unless it is likely that the equipment condition will cause a forced outage if repairs are delayed. 2) Replacing Lost Whitewater Releases from the Tainter Gate - If the outage cannot avoid a loss of scheduled whitewater releases from the Tainter gate at Glenville Dam, then the Licensee will endeavor in good faith to reschedule the releases from the Tainter gate during the current Peak Recreation Season at Glenville Dam to replace the missed releases that are normally scheduled for recreation. 3) Drawing Down the Affected Lake - To minimize the impacts to its electric customers as well as to minimize the risk of performing the work, the Licensee may choose to draw down the affected lake using the hydro unit to a point where spillage from the dam is expected to be minimized during the outage. b. Forced Outages 1) Replacing Lost Whitewater Releases from the Tainter Gate - If the outage will cause a loss of scheduled whitewater releases from the Tainter gate at Glenville Dam, then the Licensee will endeavor in good faith to reschedule the releases from the Tainter gate during the current Peak Recreation Season at Glenville Dam to replace the missed releases that are normally scheduled for recreation. (Note: If the rescheduled releases will occur during the Critical Flow Period for Stream Fish and the water temperature in Lake Glenville at a depth corresponding to the Tainter gate sill is > 20° C, the Licensee will complete the Direct Notification of resource agencies identified in item C.2.a below before making the rescheduled Tainter gate release). 2) Drawing Down the Affected Lake - To minimize the impacts to its electric customers as well as to minimize the risk of performing the work, the Licensee may choose to draw down the affected lake using the hydro unit to a point where spillage from the dam is expected to be minimized during the • outage. Attachment C. HPMEP for the WF and EF Projects.doc 16 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the West Fork and East Fork Projects • 2. Communication with Resource Agencies and Affected Parties a. Planned Outages 1) Direct Consultation - If the outage will impact scheduled releases from the Tainter gates for whitewater boating in the West Fork (Glenville) Bypassed Reach, the Licensee will consult with the NCDWR, NCWRC, USFWS, the President of the TGA and AW as soon as approximate schedule dates are determined, but at least 10 days prior to beginning the outage. The Licensee will consider options suggested by the identified agencies and organizations that could lessen the impact of the outage on the environmental, cultural and human needs relative to the hydro project. 2) General Notification- At least 10 days before beginning an outage that will cause a loss of scheduled whitewater releases from the Tainter gate, the Licensee will add the appropriate messages to its public information website and/or its lake level phone system to inform the general public of the outage and any rescheduled Tainter gate releases for whitewater recreation. • b. Forced Outages 1) Direct Notification - If the outage will impact scheduled releases from the Tainter gate for whitewater boating in the West Fork (Glenville) Bypassed Reach, the Licensee will notify the NCDWR, USFWS, NCWRC, the TGA President and AW as soon as possible after the forced outage begins, but no longer than five days afterwards. If the rescheduled Tainter gate releases will occur during the Critical Flow Period for Stream Fish and the water temperature in Lake Glenville at a depth corresponding to the Tainter gate sill is > 20° C, the Licensee will include the following information in the Direct Notification: a) The actual measured lake temperature at the depth corresponding to the Tainter gate sill b) The approximate total average daily flow in the West Fork (Glenville) Bypassed Reach just upstream of its confluence with Tuckasegee Lake c) The targeted amount (cfs), duration (hrs per day) and number of rescheduled days of the Tainter gate release. 2) General Notification - If the outage will impact scheduled releases from the Tainter gate for • whitewater boating in the West Fork (Glenville) Bypassed Reach, within five days following the start of the outage, the Licensee will add the appropriate messages to its public information website and/or its lake level phone system to inform the general public of the outage and any rescheduled Tainter gate releases for whitewater recreation. Attachment C. HPMEP for the WF and EF Projects.doc 17 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the West Fork and East Fork Projects • 3) Direct Consultation - If the outage will impact scheduled releases from the Tainter gate for whitewater boating in the West Fork (Glenville) Bypassed Reach, the Licensee will consult with the NCDWR, NCWRC, USFWS, the President of the TGA and AW as soon as possible after the outage occurs, but no longer than 10 days afterwards. The Licensee will consider options suggested by the identified agencies and organizations that could lessen the impact of the outage on the environmental, cultural and human needs relative to the hydro project. D. Dam Safety Emergency 1. Mitigating Actions a. Safety Must Come First - If a Condition A or B is declared per the Licensee's Emergency Action Plan, or other dam safety concerns arise, the Licensee may modify or suspend any license conditions immediately and for as long as necessary to restore the dam to a safe condition. 2. Communication with Resource Agencies and Affected Parties • a. Direct Notification - Conducted strictly in accordance with the Licensee's Emergency Action Plan. In cases where dam safety concerns arise that are not a Condition A or B per the Licensee's Emergency Action Plan, consultation with resource agencies and affected parties will occur as soon as possible, after the dam safety concern arises. b. Once Dam Safety Conditions Have Stabilized - The Licensee will add the appropriate messages to its public information website and/or its lake level phone system to inform the general public of the situation and any expected return to normal operation. E. Voltage and Capacity Emergencies 1. Mitigating Actions a. Suspension of the Normal Operating Range for Lake Levels - If a voltage or capacity emergency (as defined above) occurs, the Licensee may modify or suspend lake level operating limitations immediately • and for as long as necessary if doing so would allow additional hydro station operation that is needed to restore the electric grid to a stable condition. Attachment C. HPMEP for the WF and EF Projects.doc 18 Rev.: DRAFT 10/15/03 Attachment C - Hydro Project Maintenance & Emergency Protocol (HPMEP) for the West Fork and East Fork Projects • b. Conserving Water for Power Generation - If a voltage or capacity emergency (as defined above) occurs and if it is expected to continue for an extended period of time (e.g. two weeks or more), the Licensee may reduce minimum flows to the Threshold Minimum Flows (as defined above) and may modify or suspend any scheduled Tainter gate releases to support whitewater recreation in the West Fork (Glenville) Bypassed Reach if taking those actions is necessary to maintain the water inventory in project reservoirs. c. Replacing Lost Whitewater Releases from the Tainter Gate - If scheduled whitewater releases from the Tainter gate at Glenville Dam is lost, then once the emergency is over, the Licensee will endeavor in good faith to reschedule the releases from the Tainter gate during the current Peak Recreation Season at Glenville Dam to replace the missed releases that are normally scheduled for recreation. 2. Communication with Resource Agencies and Affected Parties a. Direct Notification - The Licensee will notify the NCDWR, USFWS and the NCWRC as soon as possible following a deviation from license conditions for voltage or capacity emergency reasons (add the TGA President and AW if Tainter gate releases for recreational purposes are impacted) (add the USFS if lake levels at Wolf Creek Lake or Tanasee Creek Lake or minimum flows from Wolf Creek Dam are affected), but no longer than five days afterwards. b. General Notification - Within five days following the start of the emergency deviation, the Licensee will add the appropriate messages to its public information website and/or its lake level phone system to inform the general public of the situation and any expected dates for return to normal operations. c. Direct Consultation - The Licensee will consult with the NCDWR, USFWS and the NCWRC as soon as possible following a deviation from license conditions for voltage or capacity emergency reasons (add the TGA President and AW if Tainter gate releases for recreational purposes are impacted) (add the USFS if lake levels at Wolf Creek Lake or Tanasee Creek Lake or minimum flows from Wolf Creek Dam are affected), but no longer than 10 days following such deviation. The Licensee will consider options suggested by the identified agencies and organizations that could lessen the impact of the emergency on the environmental, cultural and human needs relative to the hydro project. Attachment C. HPMEP for the WF and EF Projects.doc 19 Rev.: DRAFT 10115103 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines • DUKE POWER NANTAHALA AREA (DPNA) SHORELINE MANAGEMENT GUIDELINES (SMG) Effective Date July 1, 2003 This statement of Duke Power, Nantahala Area's (DPNA) Shoreline Management Guidelines (SMG) applies to all reservoirs owned by Duke Power in the Nantahala area, with the following exception. On the smaller DPNA reservoirs: Tennessee Creek, Queens Creek, Mission, Franklin (Emory), Bryson (Ela), Tuckasegee and Dillsboro, pier/docking regulations will not apply. Due to their small size and/or environmental concerns, pier/docks will not be permitted on these seven (7) reservoirs. In general, property owned by DPNA includes the lakes, dams, power plants, substations, all land below the full pool elevation of the reservoir and in most cases the land extending ten (10) vertical feet above the full pool elevation of the reservoir (Figure 1). All DPNA property lines above full pool elevation extend vertically. This means that the linear distance varies depending on topography. All properties, owned by Duke Power, around the DPNA reservoirs lie with-in the federally licensed project boundary for each individual hydroelectric project. As such they are subject to rules and regulation as described in the Federal Operating Licenses for these projects. Statement of Purpose: These Shoreline Management Guidelines set forth the rights and limitations as to the use of DPNA's shoreline properties. These guidelines are designed to: 1. Meet DPNA's regulatory requirements. 2. Protect DPNA's generation interests. 3. Protect the scenic and environmental value of DPNA's shoreline property. 4. Provide recreational benefits to the general public. 5. Provide a guide to adjacent property owners on permitted uses of DPNA properties. DPNA reserves the right to make minor alterations to these guidelines without public notice or resource agency or FERC review to ensure permitting flexibility in the continuous monitoring and regulation of lake use permitting activities. DPNA expects to make major revisions to the SMG's periodically and input from agencies and other interested stakeholders through the use of a focus group concept has proven an effective way to allow additional input. DPNA expects to convene a focus group of interested stakeholders prior to making major revisions to the SMG's. Additionally, FERC can mandate modifications to the guidelines as provided for in the land use article standard in new licenses. The land use article requires development of guidelines for use of project lands and waters. Use of DPNA Shoreline Property A. Regulations. The Federal Energy Regulatory Commission (FERC) regulations provide that DPNA shall allow its lakes to be used for recreational purposes, subject to certain restrictions. In that regard, DPNA establishes rules Attachment D. Shoreline Management Guidelines 1 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines for the use of the lakes which, in DPNA's opinion, are for the benefit of the greater good. Accordingly, DPNA has provided or has allowed others to provide public access areas with ramps for boating access to the lakes. In addition, the lakes may be used for fishing, boating, swimming, and other recreational activities consistent with these guidelines. Access to the lakes and the launching of boats is limited to the designated public recreation areas, public boat ramps, and approved public and private facilities. B. Use of DPNA property by the general public. In general DPNA's shoreline property is available for use by the general public, subject to the following limitations: 1. Walking, picnicking, swimming and bank fishing is allowed on all DPNA property not otherwise restricted. 2. Camping on DPNA property is limited to areas that are clearly designated and designed for such activities. 3. Designated picnicking and swimming areas may also be specifically designated for such activities. These additional designated areas are clearly marked as Day Use Only. 4. Pier/docks, steps and/or other structures, except in areas designated as public access areas, are privately owned. Any use of these facilities, by the general public, is at the sole discretion of the owner. C. Use of DPNA property by adjacent property owners. In general the Owners or lease holders of property directly adjacent to DPNA's shoreline property enjoy the same rights and privileges as afforded the general public. However the adjoining property owners may, with proper written approval, be considered for expanded privileges as follows: 1. May apply for lake use permitting activities (e.g. private piers/docks, shoreline stabilization, etc.) provided they are the owner of the tract of land immediately adjoining the project boundary. Lake Management will hold the applicant fully responsible for the permitted reservoir use (including maintaining structures in good repair). This responsibility is considered to transfer along with ownership of the adjoining property. 2. May keep and maintain a walkway, as approved by DPNA, from their property to the shoreline of the lake. 3. May keep and maintain a floating pier/dock and access steps provided these structures are properly permitted and meet all specifications and requirements of these Shoreline Management Guidelines. However, DPNA does not guarantee that all adjacent property owners will be eligible to receive a permit for a pier/dock. Pier/dock permits may be denied because of environmental or safety concerns or because of lot size or location or boating capacity limitations and other reasons DPNA may deem appropriate. See Exhibit 2 for pier/dock specifications. 4. May keep and maintain access steps to the pier/dock. Design drawings for new or rebuilt steps must be submitted and approved by DPNA prior to installation. Steps must be anchored properly with the minimal Attachment D. Shoreline Management Guidelines 2 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines • amount of intrusion into the full pond contour that still provides safe access to the pier/dock. 5. May with prior written approval, remove vegetation in accordance with the Duke Power Nantahala Area Vegetation Management Requirements (see Exhibit 1). 6. May with proper approval, install rip-rap rock, dry stacked boulder wall, or other environmentally friendly erosion control methods along the shoreline directly in front of their adjacent property. See Exhibit (3) for shoreline stabilization and erosion control specifications. Rip-rap must be placed along the base of all dry stacks with a minimum depth of one foot and a slope of 2 to 1 with a three foot base at the lakebed dry stack interface. DPNA does not recognize walk easements over adjoining property as ownership of that property; therefore holders of such easements are not eligible to obtain a pier/dock permit. Holders of such walk easements are subject to the same rights to use DPNA property as is afforded the general public. D. Limitations. Certain activities are prohibited because of the DPNA lakes small size, environmental concerns, boating capacity limitations, safety considerations and other reasons.. These include: • 1. Cabin or house boat. Enclosed vessels or vessels that could be used for habitation may not be moored overnight on any of the DPNA lakes. 2. Seaplanes. With the exception of those used by local, state, or federal agencies for fire, law enforcement and/ or rescue purposes, seaplanes are not permitted on any DPNA lakes. 3. Ski courses. Unless a part of an authorized Special Event, ski courses are not permitted on DPNA Lakes. 4. Buoys, buoy lines. Buoys and buoy lines, other than those installed by DPNA or an authorized governmental agency, are not allowed on DPNA lakes. 5. Floating trampolines and other large floating water toys. Floating trampolines and other large floating water toys may not be placed on DPNA lakes. 6. Swim platforms. Swim platforms or other structures that are not permenantly attached to an approved pier/dock are prohibited on DPNA lakes. 7. Special Events. Ski competitions, boat races, fireworks displays or other organized special events may be held on DPNA property provided they are approved, in writing, in advance by DPNA. Approval of such events will be subject to any conditions that DPNA may, at its discretion, require. DPNA may also approve other activities or uses • which, at DPNA's discretion, recreational use of the lakes. state or federal authorization. Attachment D. Shoreline Management Guidelines will enhance the general publics Special Events may also require local, Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines 8. Boat ramps. No new boat launch facilities will be allowed except those • that enhance recreational opportunities for the general public. 9. Marine Sanitation Devices. No discharge of waste (either treated or untreated) is authorized from any watercraft on any DPNA lake. E. Public Recreation Areas. In keeping with DPNA's commitment to provide public recreation opportunities, certain shoreline areas have been set aside and designated as Public Recreation Areas. These areas are set aside to provide access to the general public for one or more of the following activities: picnicking, swimming, bank fishing and or camping. No piers/docks may be installed in areas designated for public recreation except those installed for the express purpose of enhancing the recreational value of the area for the general public. Maps showing the exact location of these Public Recreation Areas are posted at all public access areas and are available through DPNA's Lake Management Office. F. Vegetation Management. Vegetation management and maintenance of vegetated terrestrial and riparian areas is an important factor in protecting and enhancing a lake's values. Riparian and terrestrial areas primarily filter runoff and can help reduce shoreline erosion when vegetation extends to and/or below the shoreline, thus helping to reduce sedimentation and protect water quality. They also provide wildlife corridors and habitat and can enhance recreational opportunities. Protection of areas (riparian and terrestrial) for wildlife movement is considered important by state and federal wildlife resource agencies concerned with the potential for development adjoining these environmentally important areas. Therefore, DPNA in consultation with various lake stakeholders, including resource agency personnel and private project-front property owners, developed requirements to protect riparian wildlife corridors on shoreline property owned by DPNA that is also within the FERC project boundary, with consideration given to impacts to private landowners with property adjoining the project boundary. DPNA encourages adjoining property owners to replant or allow the re-establishment of native vegetation in areas within the project boundary where it has been removed. Reference Exhibit 1 for vegetation management requirements. G. Restricted Areas. 1. DPNA prohibits access to certain areas because of safety considerations. Such areas are posted. They include areas near dams and spillways, buildings containing control devices and machinery, and areas near the intake or pipe used to withdraw water form the reservoir. All such areas are well marked. Violation of the restricted areas will subject the offender to prosecution under the trespass laws of the State of North Carolina. 2. Access to other property owned by DPNA may be restricted because of environmental concerns or regulation, regulations imposed by the Attachment D. Shoreline Management Guidelines 4 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines Federal Energy Regulatory Commission (FERC) or other regulatory • agencies, or other reasons requiring the limiting or denying of access to those areas or otherwise required by law. H. Archaeological and Historical Resources. DPNA has developed guidelines to protect known and unknown archaeological and historic resources that may be affected by the implementation of the SMG's. For purposes of implementing these SMG's, the Eastern Band of Cherokee Indians Tribal Historic Preservation Office (THPO) has the same consultation status as the North Carolina State Historic Preservation Office (SHPO). In the event that an applicant discovers historic or archaeological resources during construction of an approved activity, the applicant must stop work immediately and contact Lake Management. In the event that anyone discovers a potential grave site within the project, the individual must immediately notify Lake Management. DPNA encourages anyone who sees artifact collecting to notify local law enforcement personnel. Applicants for lake use permits in areas with a moderate to high probability for archaeological and historical sites may be required to conduct additional consultation with the THPO. Applicants for lake use permitting activities that involve ground-disturbing activities (e.g. shoreline stabilization, spud poles, pilings, etc.) in areas with a moderate to high probability for historic properties within the project boundary of Cedar Cliff Reservoir must consult with the THPO. A separate • form (available from DPNA) and any supporting information must be submitted to the THPO for activities of this type on Cedar Cliff Reservoir. II. Policy Pertaining to Islands Several of the DPNA Reservoirs contain islands. On some of the larger islands, DPNA's property line only extends ten (10) vertical feet above the full pool elevation of the reservoir. Any access beyond that point is subject to the control of the property owner. On islands containing privately owned lands, usage of DPNA property by the general public is subject to the same regulations as listed in section I.B of this policy. In general, other islands that are entirely owned by DPNA are available to the general public for Day Use activities such as bank fishing, swimming, picnicking, etc. Unless otherwise posted, camping is not allowed on DPNA -owned islands. III. Policy Pertaining to Pumps and Water Removal DPNA will permit adjacent property owners to install pumps to remove reservoir water for irrigation purposes or home usage, subject to the following restrictions: A. Pumps are limited in size to a volume rating of 5 gallons per minute. Attachment D. Shoreline Management Guidelines 5 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines B. Submersible well pumps are allowed provided installation, wiring and • water quality requirements along with all federal, state, and local code regulations are met. C. Except for submersible pumps and associated wiring listed above, no pumps, pressure tanks, wiring, filter equipment, buildings or any apparatus associated with the pumping operation, other than intake piping, may be installed on DPNA property. D. Removing water for home usage will be permitted only if the property owner can verify previous unsuccessful attempts to find water on his own property. DPNA will permit organized fire fighting organizations to remove reservoir water for fire suppression purposes. There is no limitation for pump volume for specific fire suppression events. Dry hydrants may be installed within the reservoir provided application is made by letter of request and approved by DPNA. DPNA will allow access to the reservoir's waters via the DPNA-owned public access area boat ramps for emergency fire suppression events. IV. Policy Pertaining to Commercial Operations No commercial marina, boat leasing facility, pier/dock construction facility or any ® other commercial activity is allowed on DPNA property unless properly approved and permitted. Applications for commercial operations may also require contacting the appropriate federal, state and local agencies and approval by the Federal Energy Regulatory Commission (FERC). V. Activities Not Controlled by DPNA Certain activities or access to the reservoirs are subject to regulation and control of governmental agencies and are beyond DPNA's control. These include: A. Motor boats and personal watercraft. These vessels and their use are regulated and controlled by applicable State of North Carolina and county laws, ordinances, and regulations. B. Waste and water discharge into a lake. These are regulated by the N.C. Department of Environment and Natural Resources and the U.S. Army Corps of Engineers. No discharge facilities can be placed on DPNA Power property unless all appropriate permits have been obtained. VI. Lake Uses/Activities That Are Prohibited The following acts or activities are prohibited on DPNA property. Persons found to be in violation of any of these will be subject to DPNA sanctions which can include: 1) restoration of the impacted area; 2) loss of consideration of any future • lake use permitting activities of up to five years for improper vegetation removal Attachment D. Shoreline Management Guidelines 6 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines or until vegetation is satisfactorily re-established (even if there is a change in • property ownership); 3) revocation of a previously issued permit and loss of consideration of any future lake use permitting activities and/or reinstatement of the revoked permit; 4) increase in fees; 5) modification or removal of non- complying structures; and/or 6) further legal action being taken by DPNA. A. Scenic Protection. • Advertising and other signs, except for inconspicuous manufacturer's labels on permitted structures, small "No Trespassing-Privately Owned" signs attached to a permitted pier/dock or "For Sale" signs on boats docked at DPNA-approved structures. • Deposit or burning of brush, leaves or other refuse, except as necessary to support public facility construction and maintenance. • Satellite dishes or other fixed communications antennas, except as necessary to support DPNA-approved public facilities. • Destruction, injury, or defacement of DPNA property. • Unauthorized alteration of DPNA property. B. Environmental Protection. • Septic tanks, septic drain lines and drain fields, toilet facilities, sinks, • water faucets, showers nor any other type of device that could produce a wastewater discharge, except for certain Commercial Facilities, Public Recreation Facilities or Conveyance Facilities necessary for waste disposal (e.g. marine pumpout facilities). • Stormwater inlet pipes and their associated settling basins. • Stormwater outlet pipes and their associated energy dissipaters (not including the final rip rap or concrete-lined channel). • Fixed fuel delivery \ storage devices anywhere other than at Commercial \ Non-Residential Facilities, Public Infrastructure Facilities or Project Use Facilities that are specifically approved for that use. • Washing, painting or resurfacing of vehicles or watercraft. • Docking of houseboats actually used for human habitation. • Any portion of a private dwelling, including attached porches and decks. • Swimming pools, except at Public Recreational Facilities specifically approved for that use. • Camping, except in designated areas or where specifically approved at Commercial Facilities or Public Recreational Facilities. • Littering or dumping of trash and debris. • Attachment D. Shoreline Management Guidelines 7 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines • Motorized vehicles except as allowed as part of an approved stabilization • or storm debris cleanup project, launching/retrieving boats at approved public or private recreation facilities or as necessary for project operation or licensee operational activities, fire fighting and/or emergency response activities. • Abandonment of personal property, including but not limited to vehicles, watercraft, boat trailers, lake use facilities and building materials. • Filling or dredging within any DPNA reservoir. • Removal of any type vegetation not provided for in the DPNA Vegetation Management Requirements or planting of any non-native vegetation. • Destruction, alteration, or tampering with any informational or boundary sign. • Unauthorized posting of any type signage. • Burning of any material or debris is prohibited. Small camp fires are allowed only in designated areas. • Firewood is not to be obtained from Duke Power property or any adjacent . private property except by the property owner. • All unauthorized commercial activities. • Placing any unauthorized structure on DPNA property. • Unauthorized removal or placement of any unauthorized materials (sand, rock, trees, etc.) below reservoir full pool elevation. • Failure to obtain a permit or comply with the conditions of a permit. • Unauthorized use of lands or waters for agriculture or aquaculture purposes. • Placement of any non-native aquatic vegetation or unauthorized removal of any aquatic vegetation from within the project boundary or DPNA property. • Mooring of any watercraft, not attached to a pier/dock, on DPNA property for a period greater than five (5) consecutive days. • Failure to comply with any of the regulations set forth in these Shoreline Management Guidelines. Attachment D. Shoreline Management Guidelines 8 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines C. Public Recreation Opportunity Protection. • • Any use that violates an applicable federal, state or local law or regulation. Examples include but are not limited to nudity, illegal discharge of firearms or fireworks, controlled substance abuse, public drunkenness, public urination or defecation, or other activities determined to be a nuisance by law enforcement officials. • Pens, kennels, fences or other facilities for the housing and care of pets and/or livestock. • Fences, except as necessary to confine livestock watering to a small area of the shoreline or to fence out nuisance animals (e.g. geese, beavers, etc.). • Docking, take-off or landing of seaplanes, except for specifically approved firefighting water carriers or approved project use activities. • Any structure having enclosed walls beyond a minor storage closet, except for Project Use Facilities with specific needs justifying enclosed walls. • Causeways, dams or dikes that would cut off the backs of coves or would otherwise potentially impact navigation. • Wells, except where necessary to support an approved Project Use Facility. • Rope swings, cables, platforms or spring boards used for diving and swimming that are located outside of Public Recreation or Commercial Facilities specifically approved for that use. D. DPNA Business Management. Any use that violates an applicable federal, state or local law or regulation. Any other use that is determined to be unacceptable by DPNA, in its sole discretion. VII. 3-step Review Process for All Lake Use Permit Activity Requests. DPNA Lake Management staff utilizes a 3-step review process for all lake use permit activity requests. Each request is evaluated based upon review of the applicable Lake Use Policy Statements (LUPS), review of the Shoreline Management Plan (SMP) maps (if applicable), and compliance with the DPNA Shoreline Management Guidelines (SMG). A lake use permitting process review flowchart for a typical private pier/dock or stabilization activity request is included in Exhibit 6. The LUPS delineate the types of access and activities that may be allowed on all reservoirs owned or managed by DPNA based upon license requirements (for all licensed hydro reservoirs); and/or federal, state, and local regulations; and specific business management objectives. These policy statements cover not only • reservoirs in the DPNA but also all other reservoirs owned or managed by Duke Attachment D. Shoreline Management Guidelines 9 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines Power. This fact coupled with the strategic business sensitivity of these • statements requires that these documents remain internal to DPNA. Specific license or other regulatory requirements that also are a part of these policies are publicly available in the specific regulation. The SMP presents on a set of maps the results of the shoreline habitat classification survey to reflect current development of the shoreline and the existing habitats developed in consultation with the wildlife resource agencies and other lake stakeholders. The SMP includes not only the habitat classifications but also the lake use restrictions associated with the important habitat types. The SMP is a tool that can be used by DPNA, the resource management agencies, the Federal Energy Regulatory Commission (FERC) and others for review of requests for utilization of the Project and its resources. The SMG are a set of detailed procedures and criteria to regulate activities within reservoirs owned or managed by DPNA. Implementation of the guidelines assures: (1) the Project's scenic, recreational, environmental and cultural resource values are protected and enhanced; (2) DPNA's power generation interests are protected; and (3) regulatory requirements are addressed. The development of permitting guidelines is a requirement of the standard land use articles in the licenses granted to DPNA for its licensed projects. These guidelines are provided for information only in Appendix- of the application to relicense. DPNA reserves the right to make minor alterations to these guidelines without public notice or resource agency or FERC review to ensure permitting flexibility in the continuous monitoring and regulation of lake use permitting activities. DPNA expects to make major revisions to the SMG's periodically and input from agencies and other interested stakeholders through the use of a focus group concept has proven an effective way to allow additional input. DPNA expects to convene a focus group of interested stakeholders prior to making major revisions to the SMG's. Additionally, FERC can mandate modifications to the guidelines as provided for in the land use article standard in new licenses. The land use article requires development of guidelines for use of project lands and waters. The 3-step review process (LUPS >SMP>SMG) involves consultation of the LUPS to ensure the proposal is allowed on the subject reservoir. The SMP review ensures the proposal is allowed along a general portion of the reservoir shoreline and is consistent with the lake use restrictions associated with each shoreline classification for that part of the reservoir. The SMG review only allows an activity that can be conducted based on the specific characteristics of the site and compliance with the applicable permitting criteria. In summary, the 3-step review process focuses the review from the reservoir down to the specific site along the reservoir shoreline. In summary, the Lake Use Policy Statements for the DPNA allow for the review • of proposals for the four basic types of lake access: 1) Private Access; 2) Public Attachment D. Shoreline Management Guidelines 10 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines Recreational Access; 3) Public Infrastructure Access; and 4) Business/Industrial • Access on the lakes with existing private and business development including Cedar Cliff, Bear Lake, Wolf Lake, Nantahala Lake and Lake Glenville. DPNA will not authorize any additional private access on the remaining smaller impoundments including Tennessee Creek, Lake Emory, Dillsboro Pond, Lake Ela, White Oak Pond, Dicks Pond, Mission Pond, Tuckasegee Pond and Queens Creek Lake. Public recreational access on the smaller impoundments will be allowed as required to meet FERC licensing commitments. Public infrastructure and business/industrial access will be allowed in accordance with the standard land use articles included in the license for each of the smaller impoundments. VIII. Implied Uses of DPNA Property Within the Project Boundary 1. There are some lake uses that are implicit parts of DPNA's lake access philosophy and therefore do not require any specific written permission from DPNA. These implicit uses include: ¦ Ingress and egress by adjoining property owners to view the lake or to access DPNA-approved lake use facilities, either for their use or for facility maintenance or facility emergency repair. ¦ Pursuit of any lawful public recreation activity within the FERC project boundary of a licensed lake or the full pond contour of an unlicensed lake that does not violate DPNA's Public Safety Plan, create a • public nuisance as declared by law enforcement officials, create a public health/safety hazard or otherwise endanger people or trespass on or damage property. Exceptions are any public recreation activity specifically identified as not being allowed, or restricted to a certain area by the SMG's or DPNA, or that requires DPNA's written approval. ¦ Placement and maintenance of signage and other minor devices that are not part of DPNA's Public Safety Plan (e.g. navigation channel markers, buoys marking submerged natural hazards, water quality monitoring buoys, etc.) and any other lawful activity necessary for the execution of routine duties by any federal, state or local government agency or group directly involved in emergency response, law enforcement, environmental management, public recreation management, public health management, lake user education or other lake management support functions. IX. Authority and Responsibility of Lake Use Permit Applicants Except for the implicit uses discussed above in the guidelines, all other lake uses must be authorized in writing by DPNA through one of the lake use permitting programs. Occasionally, questions arise concerning what exactly the applicant is getting when they get an approved lake use permit from DPNA. DPNA has incorporated some type of user's agreement (e.g. Applicant's User Agreeemnt letter for private facilities and shoreline stabilization), lease (e.g. commercial and private marina facilities) or easement (e.g. intake, bridge, etc.) document in the Attachment D. Shoreline Management Guidelines 11 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines vast majority of lake use permits the company issues in an effort to ensure • applicants understand ownership and maintenance responsibilities and their authority with regard to controlling actions of others within the lake area. The following information also helps clarify those issues. A. Facility Ownership and Responsibility The applicant is the owner of the approved lake use facility once it is complete. DPNA holds the applicant completely responsible for: • The safety of themselves and others they allow to use the facility (i.e. use at your own risk). • Payment of any applicable fees and taxes. • Maintaining the facility in a state of good repair. • Ensuring the facility does not create a public nuisance, public health or safety hazard. • Ensuring the facility remains in compliance with all applicable federal, state and local regulations and codes, as well as directives of the FERC, DPNA, and any jurisdictional agency, including modification of the facility in the future if necessary. • Removing the facility in its entirety and restoring the disturbed area as necessary at their own expense should the facility's use be discontinued, or if directed to do so by DPNA or any entity having the legal authority to do so. If ownership of the adjoining property changes, then responsibility for the approved lake use also changes and becomes automatically the responsibility of the new owner. Facility owners must contact DPNA to get the applicable permits transferred to the new owner when property ownership changes. Note that some types of lake uses require written transfer of lease/easement/user's agreement documents when property ownership changes. B. Ownership and Rights in Land DPNA lake use permits do not transfer fee title to any land. The Private Facilities and Shoreline Stabilization Programs' permits are simply permission to use the applicable land for construction, operation, use and maintenance of the approved structure. Consistent with the user's agreement, if the permit is cancelled by DPNA, the permittee may be required to remove the structure and restore the disturbed area at their own expense. • Attachment D. Shoreline Management Guidelines 12 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines The Commercial Facilities and Conveyance Programs have leases or easements • (except for water rights tracts which have user's agreements). These programs generally result in much larger facilities or facilities with a much greater potential for impact than the Private Facilities or Shoreline Stabilization Programs. To limit company liabilities and comply with the Standard Land Use Articles, DPNA uses leases and easements to assign the minimal property rights necessary to construct, operate, use and maintain the approved facility. These conveyance documents will also have a specified term and a cancellation clause covering what happens if the agreement is cancelled or not renewed at expiration. C. Authority to Control Uses of Others Lake use permit holders have the authority to prevent others from trespassing on the structures they have built. X. Caution There are some areas of the lake where facilities may not be permitted because of environmental considerations, development patterns, physical lake characteristics, boating capacity limitations or other reasons. Where applicable these areas may be identified in DPNA licensing documents. • There are exisiting structures and improvements permitted by Nantahala Power & Light (predecessor to DPNA ) which are not compatible with the requirements as contained herein. These structures may be maintained though their use does not conform with these guidelines. These structures will not be tagged by Lake Management as being permitted. When it becomes necessary to replace a previously unapproved non-complying structure, the new structure must comply with the guidelines that are in effect at the time of the replacement. Since every possible situation cannot be anticipated, Lake Management reserves the right to make special rulings in cases not specifically covered by these guidelines. XI. Consequences for Violations Lake Management representatives will issue Stop Work Directives for any violations that are detected within the project boundary of a reservoir. Consequences for violations will include one or more of the following: • Unwanted delays. • Loss of security deposits. • Suspension or cancellation of approved applications. • Increases in fees. • • Modification or removal of non-complying structures and restoration of disturbed areas at the owner's expense. • Loss of any consideration for future reservoir use applications. • Specific penalties: Attachment D. Shoreline Management Guidelines 13 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines Specific penalties (examples): • Unauthorized major cutting of the buffer (no existing pier/dock): Restoration with approved native vegetation. Loss of consideration for lake use permitting activities for up to 5 years depending on severity and subject to successful plant restoration. • Unauthorized major cutting of the buffer (existing pier/dock): Removal of the pier/dock from project property and restoration with approved native vegetation. Loss of consideration for lake use permitting activities for up to 5 years depending on severity and subject to successful plant restoration. • Unauthorized minor cutting of trees within the buffer: Restoration as required in the Duke Power Nantahala Area Vegetation Management Requirements for approved tree removal. • Refusal to remove an unapproved, dilapidated or unsafe structure: Removal of the structure from the project property by DPNA. Loss of consideration for lake use permitting activities until cost of removal, which includes all removal costs including DPNA or contractor expenses, landfill fees and a set management fee of $1000, is paid. • Unauthorized structure built within the project boundary: After the fact application may be accepted if structure conforms to the specific requirements. Fee will be twice the current permit fee to cover additional management costs. Non-complying structures will be subject to modification or removal and restoration of disturbed areas at the owner's expense. • Attachment D. Shoreline Management Guidelines 14 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines • GLOSSARY Activi - Any occupancy or use of lands and waters within the project boundary or Duke Power-owned peripheral strip. Application - A Duke Power form upon which the applicant describes and officially requests a given lake use. Each permitting program will typically have one or more application forms. Area of potential effect - Term used when considering potential lake use activity effects on historic and archaeological resources and describing the geographic area or areas within which an undertaking may cause changes in the character or use of historic properties, if any such properties exist. Boatramp/Marine Railway - An inclined structure extending from the shoreline into the lake for the purpose of launching and retrieving watercraft. Boatslip - Also referred to simply as a "slip", it is an unroofed structure designed for temporary or long-term watercraft storage. The open portion of a boatslip is normally 10' wide by 20' long and confined by at least three sides; however, other sizes do exist and fewer than three sides may be confined. "Boatslip" is synonymous with the term "boat docking location" and means one boatslin can accommodate only one watercraft at a time within the slip. Boadift/hoist - A mooring device that lifts the watercraft, including personal watercraft, above the lake level normally utilizing buoyant pontoons or a series of cables and winches. Build-out Period - Time period allowed to complete construction work under an approved Duke Power lake use permit. The build-out period begins with the date of application approval by Lake Management and ends with the last date of any approved time extensions. Business/Industrial Access - Lake access that directly supports a privately-owned industrial or commercial business, but which has little to no effect on boating. Examples include but are not limited to water intakes and discharges for factories, sand mining operations, certain utility connections, plantibusiness access roads, and commercial business staging areas. Causeway - A raised road crossing a ravine, stream or portion of a lake on which soil and/or rock are placed to build up the roadbed to a point where surface water will not typically over-top the road. Culvert pipes are typically used to allow surface water to pass under/through the road. Commercial Marina - A business operation that involves the non-project use of project lands and waters for facilities where boats can be launched, retrieved or moored and where provisions for food services or convenience retailing, including petroleum dispensing, wet and dry storage of watercraft and other activities customarily associated with marinas are conducted. (Note: See definitions for True Public Marina, Private Marina, Project Use and Non project Use to differentiate between the different types and uses of marinas). Attachment D. Shoreline Management Guidelines 15 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines • Common Use Facility - A shared boat dock or other recreational facility that can accommodate no more than five (5) watercraft at a time and that is intended to serve only the owners or leaseholders of private, projectfront lots. (Note: Common use facilities may not serve off-water lots nor any lot containing a multi family dwelling). Conveyance - The granting of rights for the use of project lands and waters under a given set of conditions. Duke Power may utilize easements, rights-of-way, leases, certain types of users' agreements or fee title transfers to grant these rights. Cove Width - Horizontal length of the shortest imaginary line extending from the full pond contour on one side of a cove and connecting to the full pond contour on the opposite side of the cove. Dock/pier - A structure for storing/mooring watercraft or providing other recreational access to a lake (e.g. fishing). Earth all - The placement of unauthorized fill material (soil or rock) within the project boundary. Easement - The granting or definition of certain rights in real property within the project boundary or on Duke Power property. Easements are used to regulate activities such as utility lines, roadway crossings, water intakes and discharges. Encroachment - Lake use structure or activity which was done without obtaining the necessary permits/approvals. Environmentally-Important Areas - Areas along the shoreline within the project boundary that provide important habitat for fish and wildlife. These areas may have additional lake use restrictions because of their unique character. FERC - Federal Energy Regulatory Commission (FERC). FERC is responsible for licensing and ensuring regulatory compliance for the nation's non-federal hydropower projects. Fac- A structure or combination of structures that is/are placed within the project boundary by the applicant. Facility Expansion - The modification of an existing facility that results in an increase of its lakeward extension, increased decking square footage, an increase in the number of boats it can accommodate, increases in water quantities withdrawn from or discharged to the project or an increase in the amount of project area leased. (Note: The addition of a boatlift/hoist within a previously approved slip is not considered an expansion). Facility Maintenance - The continuous minor repair of an existing permitted facility (i.e. structure or combination of structures) that does not involve alteration, within a twelve (12) month period, of more than 10% of a primary component (e.g. decking, pilings, roof, etc.) of that facility. (Note: Maintenance activities are minor in nature compared to rebuilds and only require concurrence from Lake Management). If a facility or a primary component (e.g. decking, pilings, roof, etc.) of that facility becomes in such a state of disrepair that complete replacement is the only practical alternative (except for flotation), then the work would be considered a rebuild and not maintenance. (Note: Of the three types of facility modification- expansion, maintenance, and rebuild - Facility Maintenance is the most minor in nature). U Attachment D. Shoreline Management Guidelines 16 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines • Facility Rebuild -The reconfiguration or replacement of an entire, existing, permitted facility or a primary component of the existing permitted facility. (Note: Rebuilds are minor in nature compared to facility expansions and may have reduced permitting requirements.) Fee - A dollar amount paid by the applicant or lake user to Duke Power to help offset Duke's costs for operating a comprehensive lake management program. Float - A floating platform for use by swimmers or for docking watercraft which is attached to a permitted structure. Flood Easement - An easement (typically covering 10 or more feet vertical above full pond elevation) that was reserved on a tract-by-tract basis to protect Duke Power from liability claims following high water events and to reserve certain rights necessary for operation of the company's electric business. Full Pond Elevation - The elevation, measured in feet above mean sea level, of the top of a lake's spillway or the top of the floodgates (if applicable). Historic Property - Any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register of Historic Places. Houseboat - Watercraft equipped with all the facilities customarily found necessary to support human habitation (e.g. enclosed cabin, restroom, sink or shower, sleeping facility). Implicit Uses-- Lake uses that are implied parts of Duke Power's lake access philosophy 0 and therefore do not require any specific written permission from Duke Power. Lake Access - Ability to use land or water within the project boundary or Duke-owned peripheral strip of a Duke Power lake. Uses include but are not limited to pier/docks, boatramps, mooring buoys, boatlifts, marinas, utility line, roadway and other infrastructure rights-of-way, shoreline stabilization devices, beaches, water intakes, wastewater discharges, boating access areas, bankfishing areas, public parks, trails and sand mining operations. Lake Use Permit Request - A written request from any party requesting written authorization from Duke Power (i.e. a permit) to use land or water within the full pond contour, project boundary or Duke Power-owned peripheral strip of a Duke lake. Maximum drawdown - The vertical distance in feet from the full pond elevation to the lowest lake elevation that is normally allowed. For lakes licensed with the FERC, the maximum drawdown is normally stated in the license. However, the maximum drawdown elevation may be exceeded for maintenance and emergency operation. For unlicensed lakes, maximum drawdown is determined by power plant operating needs. Mitigation - Actions required of the applicant/lake user for a proposed activity to offset the activity's impacts and to ensure the lake's scenic, environmental, recreational and cultural values are protected and enhanced. (Note: Applicants/lake users must first seek to avoid any such impacts. If complete avoidance is not feasible or practicable, then redesigns must be explored to minimize impacts before mitigation becomes an option). Non-Conforming Structure - Existing, previously permitted lake structure that does not comply with later revisions of the Shoreline Management Guidelines or other permitting • policies. Attachment D. Shoreline Management Guidelines 17 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines • Non-Project Uses - Term used by the FERC to identify all uses of FERC project land and water except those directly associated with the hydro station, the lake's dams and flow diversion devices and the license-required uses (e.g. specific public recreational and environmental enhancements). Normal drawdown - The vertical distance in feet from the full pond elevation to the lowest lake elevation that is normally targeted in a calendar year. (Note: The actual, lowest lake level reached in a given year may vary significantly from the normal drawdown target due to a number of factors including but not limited to weather conditions and electricity demand). Off-water Lot - A tract of land that is defined by a registered survey plat and that does not have a common boundary with the full pond elevation contour, the project boundary or the Duke Power-owned peripheral strip bordering a Duke lake. Peripheral Strip - Also referred to as the shoreline strip, it is the strip of Duke Power- owned land adjoining and lying above the full pond elevation of some Duke lakes. In certain areas there may be little to no peripheral strip, whereas in others, such as portions of the Nantahala Area lakes, Belews Lake and Lakes Keowee and Jocassee, the peripheral strip may extend to a contour ten to fifteen vertical feet or more above full pond elevation. Except for the implicit uses, all uses of land and water within the peripheral strip must be authorized by Duke Power. Permit - The written authorization from Duke Power that is required prior to beginning any construction, shoreline stabilization, vegetation removal or activating a conveyance within the full pond contour, project boundary or Duke Power-owned peripheral strip of a Duke lake. Power Line Rights-of-Way - Strip of land identified by an easement, fee title deed description or other means that contains or is planned to contain any type of power line. Examples of power lines include transmission, distribution and retail lines (both Duke and non-Duke, overhead and underground) for transmitting electric power, cable TV lines, telephone lines, telegraph lines, railroad signal lines or any type of line that carries electric power. Private Access - Lake access that is restricted to selected individuals according to where they live, where they work, membership in a specific club, etc. Examples include but are not limited to Individual Private Facilities, Common Use Facilities, Private Marinas, recreation areas for employees of a specific company, slips for non-transient campgrounds (i. e. rent for more than 14 days), and private roadways. Private Marina - A non-project use of project lands and waters for facilities where watercraft can be launched, retrieved or moored for the purpose of providing access to the lake for certain private non-commercial use by private developments or homeowner associations (e.g. off-water lots, non-transient campgrounds, yacht clubs and multi family dwellings). Residential properties associated with this classification include townhouses, condominiums, apartments, some campgrounds and subdivision access lots. Private Roadway - Any combination of roads, causeways, bridges, etc. that do not meet the requirements of a public roadway. • Attachment D. Shoreline Management Guidelines 18 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines • Proiect Boundary -This term, as used in conjunction with FERC licensed hydro projects, is generally the full pond elevation contour as stated in the license. There are some exceptions to this general rule (e.g. Nantahala Area lakes, Lakes Keowee and Jocassee) and the appropriate Exhibit K or G drawing filed with the FERC should be consulted for specific determinations. Proiectfront Lot - A tract of land that is defined by a registerd survey plat and that has a common boundary with the full pond elevation contour, the project boundary or the Duke Power-owned peripheral strip bordering a Duke lake. Project Uses - A term used in conjunction with FERC-licensed projects to include those uses of FERC project land and water that are required for construction, operation and maintenance of the project's dam(s), powerhouse(s), electric transmission facilities (typically powerhouse to and including the tie station) and any facilities required to meet the project's licensing commitments for recreation and wildlife management. Project uses are considered mandatory by the FERC and other uses must not be allowed to impair them. Public Entitv - Agency, organization, department, etc. that is charged with providing services and/or maintaining basic facilities for the general public. • Public Infrastructure Access - Non-recreational lake access that directly supports regional public infrastructure needs. Examples include but are not limited to county, municipal or utility water intakes and discharges, public roadway and utility line rights- of-way, railroad crossings, boat mooring/launching facilities for emergency response activities and for state and local law enforcement support. Public Recreational Access - Lake access that provides for the operation and management of recreational opportunities for the general public that directly support the requirements of Duke's FERC licenses and are not restricted to selected individuals. Examples include but are not limited to Duke-owned public access areas, federal, state, and local parks and recreation areas and True Public Marinas. Public Roadway - Any combination of roads, causeways, bridges, etc. that is required to meet transportation needs of the general public, is open to the general public for their use and is maintained by a public entity. Registered Survey - Scaled drawing, prepared and stamped by a duly licensed Registered Land Surveyor, to provide a metes and bounds description of a particular tract of land. (Note: A survey plat does not have to be recorded at the local Register of Deeds Office to be considered a registered survey). Rip-Rap - Large crushed stone. Security Deposit - A dollar amount paid by the applicant to Duke Power at the time a permit is applied for that will be refunded if the applicant complies with all permitting program guidelines. Shoreline Stabilization Expansion - An increase in the linear distance of shoreline stabilized, regardless of the stabilization technique (i.e. dry stack boulder wall, rip rap, and landscape plantings), and/or an increase in the vertical height of a dry stack wall or rip rap. Attachment D. Shoreline Management Guidelines 19 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines Shoreline Stabilization Maintenance - The repair a of single component (i.e. deadmen, anchors, boulders, etc.) within specific portions of a structure, or replenishing existing rip rap or landscape plantings within the confines of the originally stabilized bank. Shoreline Stabilization Rebuild - The replacement of a portion of the stabilization material/structure, not to exceed 50% of the original material/structure. Sinile-Family Pier/Dock - A facility that provides access to the lake for the owner of a single, projectfront lot. Individual private facilities may include, but are not limited to piers, docks, floats, and boatslips. (Note: Individual private facilities may not serve, multiple projectfront lots, off-water lots nor any lot containing a multi family dwelling). Special Ruling - Duke Power decision on a proposed activity that is necessary due to a lack of applicable permitting processes, policies or criteria or to prevent guideline manipulation that would allow uses that violate the intent of the permitting programs. Stop Work Directive - Verbal or written statement from Lake Management directing an immediate halt to an activity within the project boundary or peripheral strip. Such directives are issued when any violation of this manual is detected. Violations will have negative consequences for the applicant and additional written authorization from Lake Management is required before the activity can resume. Subdivision - An area of land that has been divided into multiple residential lots. Subdivision Access Lot - A tract of projectfront property within the boundaries of a residential subdivision that has been set aside for providing lake access for owners of off- water and/or projectfront lots. ' True Public Marina - A business operation that involves the public s use of project lands and waters for facilities where boats can be launched, retrieved or moored and where activities customarily associated with marinas are provided to the public. There is no predetermination of user groups for the use of aM of the land or water-based facilities, no membership requirements, and transient services (e.g. use of the gas dock) do not require wet slip or dry storage rental. Land and water-based services for transient users are provided at less than or equal to a reasonable and customary fee. Variance - Selective deviation from applicable and established permitting policies and criteria in order to allow a proposed activity's approval. (Note: Except for project uses and non project uses for public infrastructure access, Duke Power will not consider variance requests from its established policies and criteria; and even then, only in cases where there is no other feasible alternative and a variance is clearly the last resort.) Violation - Any activity within the project boundary or peripheral strip that does not comply with the requirements established by this manual. Watercra t - A boat, personal watercraft (e.g. jet ski) or any vessel that can transport a person on water. Attachment D. Shoreline Management Guidelines 20 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines ?J Exhibit 1 Duke Power - Nantahala Area Vegetation Management Requirements is Vegetation management and maintenance of vegetated terrestrial and riparian areas is an important factor in protecting and enhancing a lake's values. Riparian and terrestrial areas primarily filter runoff and can help reduce shoreline erosion when vegetation extends to and/or below the shoreline, thus helping to reduce sedimentation and protect water quality. They also provide wildlife corridors and habitat and can enhance recreational opportunities. Therefore, DPNA in consultation with various lake stakeholders, including resource agency personnel and private project-front property owners, developed requirements to protect riparian wildlife corridors on shoreline property owned by DPNA that is also within the FERC project boundaries, with consideration given to impacts to private landowners with property adjoining the project boundaries. These requirements apply to lands within the Federal Energy Regulatory Commission (FERC) project boundaries of the Duke Power - Nantahala Area (DPNA) Projects: LAKE FERC PROJECT # Nantahala 2692 Glenville 2686 Bear 2698 Wolf 2698 Cedar Cliff 2698 The following requirements apply: 1. General Protection of areas (riparian and terrestrial) for wildlife movement is considered important by state and federal wildlife resource agencies concerned with the potential for development adjoining these environmentally important areas and consideration should also be given to impacts to private landowner's adjoining these areas. a. The DPNA property within or adjoining the project boundary shall be maintained in a vegetated forested condition, where existing, that is typical of forested areas of the region. A properly vegetated area shall include canopy trees, subcanopy trees, shrubs, herbaceous plants and forest floor leaf and humus layers. b. No clearing, thinning, spraying, planting or sowing of any vegetation, except for hazardous trees in eminent danger of falling on an individual, a structure or a proposed structure (constructed outside the project boundary), or removal of non- Attachment D. Shoreline Management Guidelines 21 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines native invasive plants and poisonous plants, shall be undertaken by any person or • party without written concurrence from DPNA. Non-native invasive plant lists can be found on the Internet at: http://plants.usda.gov/cgi bin/topics.cgi?earl=noxious.cgi http://www.nps.gov/plants/alien/ 2. Vegetation Planting Protection and enhancement of the important habitat areas can be accomplished by accommodating and supplementing the exiting native vegetation. a. Vegetation native to the Appalachian Mountain region shall be required. (Note: A sample plant list (Exhibit 4) of commonly acceptable vegetation native to the Mountain Region is available from DPNA) b. Native vegetation beneficial to wildlife shall be encouraged. c. Turf grasses (e.g., fescue, Bermuda, etc.) shall not be planted and may not be allowed to become permanently established. d. Native ground cover other than permanent turf grasses may be planted as an enhancement to existing native vegetation. e. Permanent grasses other than turf grasses and other native vegetative cover may be permitted in conjunction with shoreline stabilization projects with written concurrence from DPNA. • 3. Vegetation Removal and Disturbance - General Access to the lake over project lands and waters can be accommodated provided a primarily vegetated buffer is maintained with limited clearing. a. Clearing, thinning and pruning shall, generally, be accomplished with hand-held tools. b. Mechanical clearing (e.g., bulldozers, backhoes or other heavy equipment) shall not be used (Note 1) unless in conjunction with a shoreline stabilization project or as a remedial activity, approved by DPNA, as a result of pest infestations. Disturbance for installation of stabilizing structures shall be restricted to the minimum needed to gain access and install stabilizing structures and shall not include clearing outside of the limits of the stabilization project. c. All soil and existing forest floor leaf and humus layers shall remain undisturbed and intact except for the construction of foot paths, authorized clearing or the minimum disturbance needed to stabilize shoreline or install a DPNA-approved structure. d. Foot paths for individual lots shall be no more than six feet wide and should be designed in a winding manner, avoiding large trees (> 10 inches dbh) and/or stepped to prevent surface runoff and erosion. The least damaging alternative that will prevent erosion and sedimentation shall be selected. e. Standing trees that are dead or diseased may be removed only with written concurrence from DPNA. Dead trees that do not pose a hazard, can provide habitat for wildlife and adjoining property owners are encouraged to leave dead Attachment D. Shoreline Management Guidelines 22 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines large diameter trees standing whenever possible. Hazardous trees in eminent • danger of falling on an individual or structure are permitted to be removed without written concurrence from DPNA. However, DPNA must be notified within 48 hours following removal. f. Trees that fall into the lake, and do not block or unnecessarily restrict navigational access should be left in place to benefit fish and/or wildlife. Trees that fall into the lake and restrict navigational access and/or access for approved stabilization projects may be pulled onto the forested area as terrestrial habitat with written concurrence from DPNA. Fallen trees that do not pose a safety or navigation hazard generally must remain as fish and/or wildlife habitat and may only be removed with written concurrence from DPNA. g. Trees that are allowed to be removed from the land or shoreline should be securely anchored along the shoreline to improve fish and/or wildlife habitat or placed in the buffer as a downed log. Trees should be securely attached or anchored to prevent movement away from the shoreline. Trees that need to be removed but are away from the shoreline should be placed within the buffer to serve as downed logs. These trees that are eligible for removal, can be limbed and placed within the buffer provided sections of the tree trunk that are six (6) inches diameter or larger are retained at a minimum length of eight (8) feet. h. Standing live trees that are intentionally removed shall be replaced by a quantity of trees totaling the diameter of the tree removed. Replacement trees are not to be less than two (2) inches in diameter (e.g., three 2-inch trees may replace one 6- inch tree). Diameter shall be measured at breast height (dbh) of four feet above the base of the tree. Replacement trees should be a native "ecological equivalent" of what is removed (i.e. a tree removed from the canopy should be replaced with a similar species that also has the potential to reach the canopy, subcanopy trees should be replaced with a subcanopy species, etc.). Soil types, soil moisture and shade tolerance should be considered when selecting replacement trees. i. Individual trees may not be pruned except for viewsheds as provided below. j. Activities necessary for clearing debris and pruning existing trees as a result of substantial alteration of the natural forested canopy by extreme weather conditions (e.g. wind and ice storms) will be considered on an individual basis with written concurrence of DPNA and review by the North Carolina Wildlife Resources Commission. k. Grubbing or grinding of tree stumps of any size is not allowed except in the establishment of foot paths (large trees > 10 dbh must be avoided) and as approved as part of authorized stabilization activities. 1. Except for application to poisonous plants (e.g. poison ivy, poison sumac, and/or poison oak), chemicals shall not be used to kill other native non-invasive vegetation on land or in the water. 4. Viewsheds Viewsheds are intended to allow adjoining home or structure owner's views of the lake and/or other surrounding natural features while maintaining a vegetated forested condition that includes a varied forest canopy. Attachment D. Shoreline Management Guidelines 23 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines • a. A single viewshed may be established in consultation with a DPNA Lake Management Representative once a home or building is constructed. b. An on-site meeting between the lake management representative, the home or business owner and any landscape contractor is required to establish the viewshed. The meeting will result in an approval letter that specifically identifies and lists all activities that can be accomplished to provide a viewshed, including but not limited to, pruning, topping, tree and/or vegetation removal, tree and/or vegetation replanting, etc. c. Vines, shrubs, and trees may be selectively pruned/limbed in order to facilitate a viewshed. Native shrubs and vines shall not be pruned from the ground to a height of four (4) feet. d. A joint single viewshed may be created by two adjoining property owners with written concurrence from DPNA. e. Minimal topping and removal of only selected evergreen trees (e.g. white pine, yellow pine) will be considered to establish a viewshed. f. Small diameter (i.e. < 6" dbh) white and yellow pines may be removed from within the approved viewshed without being replaced. g. Viewsheds will not be allowed to be created on DPNA property within the confines of adjoining areas designated as Vegetated areas/coves with stream confluence. h. To verify that the establishment of this viewshed concept has not resulted in destruction of the vegetated forest condition, the effectiveness of the viewshed . requirements may be re-evaluated at the request of any member of the Technical Leadership Team (GWB3) after two years of implementation. This re-evaluation period requirement will end after the second year or until a minimum of 3 viewsheds have been established, whichever occurs later. 5. Shoreline stabilization Shoreline stabilization by the property owner adjoining the project boundary is encouraged to help control soil erosion. a. Shoreline stabilization is permitted with written authorization from DPNA. b. Minimal clearing is allowed to create corridors for equipment access for stabilization projects. Access corridors should be incorporated into permanent pier/dock access corridors (i.e. foot paths) where practical. Native vegetation removed to accommodate construction access for shoreline stabilization shall be replaced with native vegetation of a similar growth form to what was removed. 6. Water Dependent Structures Facilities approved and constructed within the full pond contour provide access to the reservoir and have an impact on adjoining property values. • Attachment D. Shoreline Management Guidelines 24 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines a. Structures that support water dependent uses (e.g., docks, piers, and boatslips) are • permitted within the project boundary if they comply with all applicable DPNA, local, state, and federal guidelines. Notes: 1. Activities conducted by federal, state or local governments, railroads, public utilities or other entities that typically have the power of eminent domain (e.g. utility or roadway right of way, construction, and maintenance, etc.) are not subject to the provisions of this article. However, such activities, where practical, should be conducted in a manner that is consistent with these requirements. 2. Activities conducted on state or national forest land for the production or harvesting of timber and conducted in accordance with the "Forest Protection Guidelines Related to Water Quality" or the North Carolina Sedimentation Pollution Control Act of 1973 are not subject to the provisions of these requirements. 3. The provisions of these requirements shall not apply to DPNA-approved maintenance or rebuild activities or activities (e.g. pier/docks, stabilization, mowing) which were allowed and/or approved by DPNA prior to the adoption of these requirements. is • Attachment D. Shoreline Management Guidelines 25 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines 0 Viewshed Schematic Property Line Lot „C„ Lot W - «B„ -du u Qoca o oJ? ?eripheral Pr pen _ Y DPNq _ QJ Ooc --- oc w? Lot • "A" Viewshed Created and -- Maintained with Written Authorization from DPNA - T -- Viewshed Created and Maintained with Written Authorization from DPNA Adjoining /Jropert ' Owner y Penph Property Corner (ppNqeral proPerfY 4 Full Pond Contour Normal Lake Elevation (Varies) 41 Attachment D. Shoreline Management Guidelines 26 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines • • • Viewshed Examples Acceptable Unacceptable Attachment D. Shoreline Management Guidelines 27 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines r? t Viewshed Examples Acceptable Unacceptable Attachment D. Shoreline Management Guidelines 28 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines • EXHIBIT 2 Floating Pier/Dock Specifications Types of Pier/dock Permits and Designed Usage DPNA will review applications for four (4) different types of piers/docks on the DPNA Reservoirs that are eligible for pier/dock permits. These type piers/docks and their intended usage are as follows: A. Commercial Marinas. Commercial marina permits will allow permit holders to install a True Public Marina (see Exhibit 5). Applications for Commercial marinas will require federal, state, and local resource agency review, and possible review and approval by the Federal Energy Regulatory Commission. Commercial marinas are designed to accommodate the needs of the general pubic; may be allowed, with proper approval, to accommodate more than 10 watercraft; and may charge a fee for their usage. Commercial marinas may offer boat rentals, the selling of gasoline, food supplies, or other commercial items. B. Private Marinas. Private marina permits will allow permit holders to install a marina that may accommodate up to but not more than 10 watercraft. Applications for Private marinas will require federal, state, and local resource agency review, and possible review and approval by the Federal Energy Regulatory Commission Private marinas are designed to accommodate the private non-commercial use by private developments or homeowners associations that own property adjoining DPNA's shoreline property. C. Single-Family Piers/Docks. Single-family pier/dock permits will allow permit holders to install a pier/dock, at which no more than two (2) motorized watercraft (or two large sailboats or combinations of both not to exceed (2) watercraft) with no limitation on non-motorized watercraft or (3) motorized watercraft with no non-motorized watercraft may be moored. Single-family piers/docks are permitted for the private, non- commercial, use of individual property owners or lease holders that own/lease property adjoining the project boundary. D. Common Use Piers/Docks. Common use pier/dock permits will allow individual property owners or lease holders that own/lease property adjoining the project boundary to install a pier/dock, at which no more than five (5) watercraft may be moored. Common use piers/docks are designed for the private, non-commercial, use by two or more individual property owners that own/lease property adjoining the project boundary. • Attachment D. Shoreline Management Guidelines 29 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines r U II. Pier/dock Size and Design. Single-family piers/docks are by far the most common piers/docks permitted on any of the DPNA reservoirs. Therefore a standard maximum size for this type pier/dock has been established (See Figure 2). A single-family pier/dock may have terminals of any shape, provided that said terminal has outside dimensions of no greater than 20 x 26 feet. Jet ski pads may be attached to a single-family pier/dock only if the addition of the pad does not cause the overall size of the pier/dock to exceed size limitations. Over all length may not exceed 50 feet except as specified in Placement item 7 below. (Note: Jetskis are considered motorized watercraft and as such are limited in number for mooring at single- family and common use piers/docks as are other motorized watercraft). Approved pier/dock size and design for common use piers/docks and marinas may vary due to location and adjoining lot size. DPNA will review design configurations for common use facilities on a case-by-case basis. III. Specifications for Placement and Construction of Piers/Docks. A. Placement • Piers/docks must be placed so that all portions of the pier/dock are at least fifteen (15) feet from the imaginary projection of adjoining side lot lines as those lines project out into the lake. Projection of these side lot lines is accomplished by extending an imaginary line perpendicular to the project boundary at each property corner. These lines are determined by bisecting the angle formed by the two projectfront property lines that intersect at each property corner. Exact placement of piers/docks will be determined by DPNA. 2. Unless otherwise specified, piers/docks must be placed at right angles to the shoreline. 3. No pier/dock may extend more that one-third (1/3) the distance across a cove. 4. Piers/docks must be secured in such a manner that the walkway is in contact with the shoreline at all times. Posts, pipes or other rigid mooring devices may not be placed in reservoir waters unless used in conjunction with a floating pier/dock or to create a raised walkway over existing vegetation as identified in the Shoreline Management Plan in areas classified as Vegetated Areas/Coves with Stream Confluence. Attachment D. Shoreline Management Guidelines 30 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines • 6. Cables used to secure piers/docks to the shoreline may not encroach across projected side lot lines. 7. Overall length of a pier/dock (walkway and terminal end) may not be greater than 50 feet. DPNA will consider allowing an overall length of greater than 50 feet (not to exceed a maximum of 75 feet or 1/3 the distance across the cove) if a water depth of four (4) feet at the end of the pier/dock, at reservoir full pool elevation, can not be reached in that distance. DPNA will consider allowing an overall length of greater than 50 feet (not to exceed a maximum of 75 feet or 1/3 the distance across the cove) on Wolf Lake if a water depth of four (4) feet at the end of the pier/dock, at reservoir normal target elevation during the recreation season (May-Oct.), cannot be reached in that distance. B. Construction. All portions of the pier/dock and walkway must float with the exception of a raised walkway over existing vegetation as identified in the Shoreline Management Plan in areas classified as Vegetated Areas/Coves with Stream Confluence. Rigid, permanently affixed piers are not allowed on any DPNA reservoir. However, spud poles may be used to secure floating piers/docks. • 2. All pier/dock flotation material must float when punctured. Encapsulated styrofoam is the recommended flotation material, however closed cell styrofoam and plastic barrels filled with expandable foam are allowed. Other forms of flotation may be allowed with prior written approval from DPNA. Beaded stryofoam and metal drums are expressly prohibited as flotation materials. No covered or enclosed piers/docks are allowed on DPNA reservoirs. 4. Handrails on walkways and piers/docks must be open, and may not reduce boater visibility. 5. No covered or enclosed structures may be placed on piers/docks with the exception of small storage boxes that have been approved by DPNA. 6. Access ladders are allowed on piers/docks, however sliding boards, diving boards or other such structures are not allowed. • Attachment D. Shoreline Management Guidelines 31 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines 7. Habitable structures and waste producing facilities such as living • quarters, sinks, bathrooms, and showers are not allowed on piers/docks and are not allowed to discharge into reservoir waters from any source. Reflectors are required at the corners of all sides of the terminal end of the pier/dock except the side facing the shore. At least one reflector shall be placed on each side of the walkway, midway between the shore and the terminal end. White reflectors or white reflective tape attached with screws or nails are preferred. If white reflectors or reflective tape are not available amber reflectors may be used. 9. The construction of any facility must be completed as described in the approved application and within twelve months from the date of application approval by Lake Management. An extension will be considered for legitimate extenuating circumstances provided a specific timeframe in which to complete the construction, not to exceed an additional 12 months, is provided in writing to DPNA by the applicant. 10. Gasoline and oil may not be stored on piers/docks, except as approved as part of a commercial marina. • 11. Electrical hookups are allowed on piers/docks provided they meet North Carolina Building Codes and have been inspected and certified by the county electrical inspector, where applicable. DPNA must be furnished with a copy of the county inspector's final inspection report. 12. Boatlifts or personal watercraft lifts may be allowed to be installed with proper written approval of DPNA. A total of one boatlift or personal watercraft lift may be installed within a boatslip and/or one boatlift or personal watercraft lift may be constructed adjacent to the outside of a boatslip. Only one boatlift or personal watercraft lift will be considered for placement adjacent to a pier/dock without a boatslip. IV. Inspections and Compliance. All piers/docks permitted on DPNA reservoirs must at all times remain in compliance with the rules and regulations set forth in the Shoreline Management Guidelines. Piers/docks must also be maintained in a safe condition at all times. A. Inspections. U Attachment D. Shoreline Management Guidelines 32 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines DPNA reserves the right to enter upon and inspect any pier/dock at any • time. B. Compliance Piers/docks, determined by DPNA to be non-complying structures, whether for violation of permit criteria or for safety reasons, must be repaired, removed or replaced by the owner within a timeframe as prescribed by DPNA. Unless otherwise specified, failure to make necessary changes or repairs in the specified timeframe will result in immediate revocation of the pier/dock permit and removal of the pier/dock from within the project boundary. Once a pier/dock permit is revoked for noncompliance, further lake use permitting activities may not be considered for a period of not more than five (5) years depending on severity and subject to successful plant restoration (when applicable) even if the adjoining property changes ownership. • • Attachment D. Shoreline Management Guidelines 33 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines • is • EXHIBIT 3 Shoreline Stabilization and Erosion Control 1. With proper approval vegetation, dry stack rock, rip-rap rock five (5) to fifteen (15) inches in diameter or larger, or other environmentally friendly erosion control methods (i.e. bio-engineering) will be permitted. 2. Installation of erosion control methods require a DPNA permit, a 404 US Army Corp of Engineers permit and a 401 Water Quality Certification issued by the NCDNER- Division of Water Quality (DWQ). For 404 and 401 permit information contact the US Army Corps of Engineers office in Asheville, NC and the DWQ Asheville regional office. 3. Rip-rap must meet U.S. Army Corps of Engineers guidelines. 4. Erosion control efforts cannot change the basic contour of the existing shoreline. 5. All erosion control measures must meet local, state and federal requirements. 6. Filter fabric (geo-textiles) will be required for either rip-rap or dry stack construction. 7. The use of concrete or grout as an erosion control measure or as a component of an erosion control measure is prohibited. Attachment D. Shoreline Management Guidelines 34 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines r Figure 1: Examples of the relationship of vertical property lines and linear distance. Shoreline N77=:z6E vation 3110 evation 3100 Full pool elevat ion Example 1 Nantahala property line Shoreline Full pool elevation • Example 2 n U 10 q Attachment D. Shoreline Management Guidelines 35 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines Figure 2. General Boat Dock Design Terminal maximum dimensions are twenty (20) feet wide and twenty-six (25) feet long. The maximum length of the dock is fifty (50) feet. • L ?r s • • .C -LIL ` 6+ Terminal 1 • • 50' maximum • White Reflectors Attachment D. Shoreline Management Guidelines 36 20' • Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines • • Figure 3. Dry Stack Boulder Wall Design Guidelines Dry Stack Boulder wall Full Lake Level Q Minimum of 3 feet t O C Riprap slope no greater than 1 to 1 Riprap (Class B - S"- 15 "sire) 2 Attachment D. Shoreline Management Guidelines 37 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines • Exhibit 4 Native Plant List • Mountain Region Information sources- "Recommended Native Plant Species for Stream Restoration in North Carolina", Karen Hall- NC Stream Restoration Institute; and Ken Manuel- Duke Power. SMALL TREES/SHRUBS TREES HERBACEOUS Acer rubrum Alnus serrulata Arisaema triphyllum red maple tag alder jack-in-the-pulpit Acer saccharum Amelanchier arborea serviceberry Asclepias incarnata sugar maple swam milkweed Acer negundo Aronia arbutifolia box elder Carex crinata red chokeber fringed sedge Aesculus octandra Asimina triloba yellow buckeye common pawpaw Carex intumescens bladder sedge Betula alleghaniensis Calycanthus floridus yellow birch sweet-shrub Carex lupulina hop sedge Betula lenta Carpinus caroliniana Carex lurida cherry birch ironwood lurid sedge Betula nigra Corpus alternifolia alternate leaf dogwood Carex scoparia river birch broom sedge Carya cordiformis Corpus amomum bitternut hickory silky dogwood Carex stricta tussock sedge Attachment D. Shoreline Management Guidelines 38 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines • • • SMALL TREES/SHRUBS TREES HERBACEOUS Carya glabra Corylus americana hazel-nut Carex vulpinoidea pignut hickory fox sedge Carya albs Hamamelis virginiana mockernut hickory witch-hazel Chelone glabra turtlehead Carya ovata flex verticillata winter berry Cyperus strigosus shagbark hickory umbrella sedge Diospyros virginiana Leucothoe axillaris Persimmon doghobble Elymus hystrix bottlebrush grass Fagus grandifolia Lindera benzoin beech, American beech spicebush Eupatorium fistulosum Joe-pye-weed Fraxinus americana Lyonia ligustrina white ash Eupatorium perfoliatum male-berry boneset Fraxinus Magnolia tripetala pennsylvanica umbrella tree Impatiens capensis green ash jewel-weed Halesia caroliniana Physocarpus opulifolius silverbell Juncus effusus ninebark soft rush flex opaca american holly Rhododendron Leersia oryzoides periclymenoides rice cutgrass wild azalea Juglans nigra Rhododendron viscosum black walnut Lobelia cardinalis Attachment D. Shoreline Management Guidelines 39 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines • • • SMALL TREES/SHRUBS TREES HERBACEOUS swam azalea cardinal flower Juniperus virginiana Rosa palustris red cedar swamp rose Lobelia siphilitica reat blue lobelia Liriodendron Salix sericea tulipifera silky willow Ludwigia alternifolia yellow-poplar bushy seedbox Magnolia acuminate Spirea latifolia cucumber magnolia Panicum virgatum meadowsweet switchgrass Nyssa sylvatica Symplocos tinctoria blackgum sweet leaf Polygonum sagittatum tearthumb Picea rubens red spruce Viburnum cassinoides Scirpus atrovirens Withe-rod green bulrush Pinus strobes Xanthorhiza simplicissima eastern white pine Scirpus cyperinus yellow-root woolgrass Pinus echinata Cephalathus occidentalis shortleaf pine buttonbush Scirpus validus soft stem bulrush Pinus taeda Hydrangea arborescens loblolly pine wild hydrangea Sparganium americanum bur-reed Platanus occidenialis Hypericum densiflorum sycamore brushy St. Johnswort Thelypteris palustris marsh fern Prunus serotina Rhamnus caroliniana Uniola latifolia black cherry Carolina buckthorn river oats Attachment D. Shoreline Management Guidelines 40 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines • • • SMALL TREES/SHRUBS TREES HERBACEOUS Quercus Alba Rhododerdron White oak arborescens Vernonia sweet azalia noveboracensis ironweed SMALL TREES/SHRUBS TREES HERBACEOUS Quercus montana Salix caroliniana Arundinaria gigantean chestnut oak carolina willow river cane Sambucus Canadensis Quercus stellata elderberry post oak Quercus rubra Eleocharis acicularis red oak slender spikerush Quercus coccinea scarlet oak Eleocharis plaustris creeping pikerush Quercus falcata Eleocharis southern red oak quadrangulata s uare-stems ikerush Quercus velutina Elymus virginicus black oak Virginia wildrye Salix nigra Scirpus americanus black willow three-square bulrush Tilia heterophylla Hibiscus moscheutos white basswood swamp rose mallow Tsuga canadensis Onoclea sensibilis eastern hemlock sensitive fern Attachment D. Shoreline Management Guidelines 41 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines • • SMALL TREES/SHRUBS TREES HERBACEOUS Tsuga caroliniana Carolina hemlock Osmunda cinnamomea cinnamon fern Ulmus alata winged elm Osmunda regalis royal fern Gleditsia triacanthos honeylocust Apios Americana roundnut vine Liquidamber styraciflua Campsis radicans sweetgum trumpet creeper Morus rubs Clematus virginiana red mulberry virgin's Bower Ostrya virginiana Parthenocissus Eastern hophornbeam quinquefolia Virginia creeper Populus deltoides Wisteria frutescans Eastern cottonwood American wisteria Taxodium distichum baldc press Attachment D. Shoreline Management Guidelines 42 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines is Exhibit 5 TRUE PUBLIC MARINA REQUIREMENTS The following information will be used to determine the classification of marinas at the projects. To be classified as a True Public Marina, the facility must meet all of the requirements in sections 1 and 2. Section 3 identifies the application fee and security deposit to be paid. No predetermination of user groups for any of the existing or proposed land or water based facilities. a. No Private Marinas (existing or proposed) b. No membership requirements c. Transient services do not require wet or dry storage rental t 2. Existing and/or proposed facilities will provide land and water based recreation services for transient users at less than or equal to a reasonable and customary fee. a. Services are available for transient users b. Offers services for lake and land based users 3. Application filing fee and security deposit reductions a. If adding only the following type of facilities; courtesy pier/dock, hiking trail, wildlife viewing, gas pier/dock, fishing pier/dock, boat ramp, swimming area, beach, boat repair/servicing, public restrooms or any other truly public service, then the application fee and security deposit will be reduced by 100%. b. If adding facilities that will be rented for greater than 14 days, but less than or equal to 365 days, there will be a 50% reduction in the application fee and security deposit. c. If the plan is the same as b., but also includes adding more types of items in 3 a., then the application fee and security deposit will be reduced by 100%. 0 Attachment D. Shoreline Management Guidelines 43 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Shoreline Management Guidelines • Exhibit 6 Lake Use Permit Review Flow Chart (Private Fac. / Shoreline stabilization) LAKE USE PERMIT ACTIVITY REQUEST Review Lake Use Policy Statements Is Lake LM Conducts Onsite Yes Specific Type of No Management Inspection Access Allowed Sends Denial Y/N Letter Send Application to Requester Applicant Completes Application and Returns to LM for Review Lake Is No Activity Management Allowed Per Sends Denial SMP Letter Y/N • Yes Direct Applicant Yes ?l m] To Contact DWQ/COE Lake Does Management No Activity Sends Denial Comply With Letter SMG Applicant Y/N Receives Permit Yes [or Authorization From DWQ/COE Is Does Adjoining Lot No Activity No Impacted by Require LM Completes Veg. Class. DWQ/COE Application Review Y/N Review Y/N Yes Issue Permit (Authorization Ltr.) Can eg.Class. Yes Be Avoided Applicant Notifies Y/N LM Constr. Is Complete No Lake Management Impact Is NO pac Yes LM Contacts USFWS/NCWRC LM Verifies Construction Sends Denial Eligible For Miti anon g For Specific (Onsite InspJTag) Letter Mitigation Y/N Requirements MITIGATION ELIGIBILITY REQUIREMENTS • Was Lot Subdivided and Recorded Prior to 7/1/03? LM Closes Out Application And • Can Access Be Granted Per SMG and Completely Updates Data Bases Bridge Vegetation Within Reservoir? Attachment D. Shoreline Management Guidelines 44 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Class and Lake Use Restrictions CLASSIFICATIONS AND LAKE USE RESTRICTIONS FOR THE NANTAHALA AREA (Notes I • and 4 1. Vegetated Areas/Coves with Stream Confluence - This habitat type exists where stable, emergent, native vegetation (rooted within the normal operating range of lake levels and having a minimum lakeward width of 5 feet) composes > 50% of the area for a minimum distance of 100 linear feet or where intermittent or permanent streams enter the upper ends of coves (with or without vegetation). Where cove heads with a stream confluence exist but lack vegetation, this classification will extend to 50 feet beyond the edge of an established sedimentation delta. In the absence of an existing delta, this classification will extend 50 feet beyond each side of the intersection of the stream centerline and the full pond contour. The following specific lake use restrictions will apply: LAKE USE RESTRICTIONS - No piers, clearing, excavation, or shoreline stabilization inside the project boundary. Appeals for Piers/Docks Havine No Practicable Alternative-Property owners may request to have special consideration given to their proposal under the LAKE USE RESTRICTIONS to place a pier/dock in vegetated areas within the Vegetated Areas/Coves with Steam Confluence classification by providing compelling information that supports a contention that no practicable alternative to the requested pier/dock access exists. Mitigation-Successful appeals should be expected to include reasonable mitigation requirements recommended by the natural resource agencies. Wildlife resource agencies (e.g. NCWRC and USFWS) must be provided at least a 30-day review and mitigation plan development period for any proposal. Mitigation considerations include: 1) contribution to enhancement comparable to the impact; 2) maintenance of the mitigation activities as long as the facility exists; 3) implementation of the mitigation prior to facility construction; 4) allowance for out- of- kind replacement involving different habitat types provided the recommended replacement is greater than or equal to the total value of the habitat impacted, 5) in-kind replacement as the preferred method although out-of-kind habitat enhancements can be deemed acceptable, and; 6) a premise of no net loss of habitat important for fish and wildlife. Construction Limitations-Individual simple piers/docks (serving single individual projectfront property owners) that completely bridge by elevated pile or pole-supported walkway over the vegetated area may be allowed, along with clearing of access corridors needed for such docks, no clearing except for access corridors, no excavation or shoreline stabilization inside the project boundary. Piers/docks can not be placed within 50 feet of a stream confluence. The total number of piers/docks that can potentially be constructed in an area > 100 feet classified as Vegetated Areas/Coves with Stream Confluence is limited to one pier per 100 feet of shoreline within the classification. This pier/dock per linear footage of shoreline limitation, applies regardless of the number of individual lots that adjoin the project boundary adjacent to areas with this classification. Consequences for Violations-Destruction of native emergent vegetation within the full pond contour or unauthorized removal of vegetation within the project boundary may result in one or more of the following: 1) restoration of the impacted area at the owner's expense; 2) revocation of a previously issued pier permit; 3) loss of consideration of any future lake use permitting activities for up to five years or until vegetation is satisfactorily re-established; and/or 4) further legal action being taken by Duke Power. Duke Power reserves the right to modify the lake use restrictions associated with vegetated areas/coves with stream confluence to eliminate the opportunity for future pier/dock construction within these areas if wholesale destruction of vegetation within these areas becomes widespread. II. Fractured Rock, Woody Debris and Sand/Cobble- These types of habitat exists where: 1) the shallow-water substrate is composed primarily (> 50%) of medium to large broken boulders for a minimum distance of 100 linear feet; or 2) 4 or more felled trees (> 10 inches in diameter at breast height) extending from the shoreline into the water per 100 linear feet of shoreline are present; or 3) the shallow-water • substrate is composed primarily (> 50%) of stable sand or sand and cobble for a minimum distance of 100 Attachment D. SMP Class and Lake Use Restrictions 1 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Class and Lake Use Restrictions linear feet. Isolated boulders and gravel may also be present, but are minor components (< 50%) of the • substrate. These areas consist of Project lands and waters that have specifically-identified importance from an environmental standpoint but protection of those important values does not necessarily preclude private, commercial, or other access to the lake. Applicants must first try to avoid these habitat types, but if complete avoidance is not a practicable alternative, then the following specific lake use restrictions will apply: LAKE USE RESTRICTIONS - No commercial piers except True Public Marinas (Note 2), no boat ramps except those required for Public Recreation and no excavation except the minimum amount necessary and approved as part of installation of a dry-stacked boulder wall. Applicants should expect to have specific reasonable mitigation requirements imposed by the federal and state wildlife resource agencies for construction within areas classified as Woody Debris and/or Sand/Cobble. Wildlife resource agencies (e.g. NCWRC and USFWS) must be provided at least a 30- day review and mitigation plan development period for any proposal within an area classified as Woody Debris or SandlCobble. Downed trees within the full pond contour should be allowed to remain as fish and/or wildlife habitat when possible. III. Silt, Bedrock and Clay/Weathered Rock - These types of habitat exist where: 1) the shallow-water substrate is composed mostly (> 50 %) of silt from a nearby tributary stream for a minimum linear distance of 100 feet; or 2) the shallow-water substrate is composed primarily (> 50%) of solid rock outcrops for a minimum distance of 100 linear feet; or 3) the shallow-water substrate is composed mostly (> 50%) of clay or a combination of clay and weathered rock (e.g., gneiss and schist) for a minimum distance of 100 linear feet. LAKE USE RESTRICTIONS - Construction activities in accordance with federal, state, local, and DPNA guidelines. IV. Rip Rap/Dry-Stacked Boulders -This type of habitat exists where these man-made structures have been placed within the project boundary of the lake for a minimum distance of 100 linear feet. LAKE USE RESTRICTIONS - No concrete, grout or rock veneer utilized as part of dry-stack boulder wall construction. Rip rap must be placed along the base of all dry-stack boulder walls. Construction activities in accordance with federal, state, local, and DPNA guidelines. V. Pier/Dock- This type of habitat notes the presence of a pier and/or dock supporting various public or private recreational amenities. Examples of the public recreation classification include Duke-owned public access areas, True Public Marinas, and state, district, county and city parks. Examples of private recreational amenities include private piers and private marinas. LAKE USE RESTRICTIONS - Construction activities in accordance with federal, state, local, and DPNA guidelines. No new construction without written authorization from DPNA. Notes 1. Public-need projects where the applicant has the power of eminent domain can be exempted from the listed lake use restrictions provided there is no other acceptable alternative (similar to practicable alternative (Note 3), except it allows more consideration for economics of alternatives and desires of the applicant). Also note that the shoreline classifications and associated lake use restrictions are considered to apply to the project boundary line and the area extending lakeward and perpendicular to the shoreline for a minimum distance of one-third the cove width. Where restrictive classifications (e.g. Vegetated areas/coves with stream confluence, Fractured Rock, Woody Debris and Sand/Cobble) wrap around the heads of coves, the lake use restrictions will also apply to the entire cove width in the wrapped area. 2. True Public Marinas provide public recreational opportunities with no predetermination of user groups for any of the existing or proposed land or water based facilities. a. No commercial/residential (existing or proposed) b. No membership requirements • C. Transient services do not require wet or dry storage rental Attachment D. SMP Class and Lake Use Restrictions 2 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - Class and Lake Use Restrictions Existing and/or proposed facilities will provide land and water based recreation services for transient • users at less than or equal to a reasonable and customary fee. a. Services are available for transient users b. Offers services for lake and land based users 3. An alternative is not considered practicable if choosing it over the desired option would result in aM of the following: a) Violation of any applicable permitting criteria or lake use restriction. b) Requiring the applicant to dredge the lake bed in order to use the requested facility, whereas dredging would not be required if some allowance were made for crossing into the restricted area. c) Modification of the desired facility to the point that the resulting structure would be of very limited usefulness. The provisions of these requirements shall not apply to DPNA-approved maintenance activities or activities (e.g. piers, stabilization, mowing) which were allowed and/or approved by DPNA prior to the adoption of these requirements. When a facility currently located within the Vegetated Areas/Coves with Stream Confluence must be rebuilt, the owner must relocate the facility outside the classified area to the maximum practical extent. This provision, however, does not eliminate the opportunity to rebuild a previously existing facility if there is no means of avoidance. 5. The Shoreline Management Plan Maps were generated from a Geographic Information System (GIS) and are not intended to be survey quality. Actual start and stop points for transition between classifications are subject to interpretation by DPNA. C7 • Attachment D. SMP Class and Lake Use Restrictions 3 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - User's Agreement • Y Power. Power, A Duke Energy Company DUKE POWER NANTAHALA AREA (DPNA) PRIVATE FACILITIES "APPLICANT'S USER AGREEMENT" LETTER (You may use this letter and fill in the requested information. Please Print) Date TO: Duke Power c/o Lake Management - EC 12Q P. O. Box 1006 Charlotte, NC 28201-1006 RE: (Lake Name) (Street Address) 0 (Subdivision / Lot #) (Applicant's full name) hereby agrees to comply with all requirements and conditions set forth by Duke Power's Nantahala Area (DPNA) Lake Management office, or any federal, state or local agencies pertaining to our application to construct a on Lake . In addition, I/we have read and agree to comply with DPNA Shoreline Management Guidelines' (SMG) and understand that written authorization must be obtained from Duke's Lake Management office prior to beginning any activity/construction within the project boundary. The construction will be completed as described in the approved application and within twelve (12) months following the date of written approval by Lake Management. An extension will be considered for legitimate extenuating circumstances provided a specific timeframe in which to complete the construction, not to exceed an additional 12 months, is provided in writing to DPNA by the applicant. Failure to complete construction within the 12-month build-out period or any DPNA-approved extension will require the applicant to file a new application that complies with the then- current guidelines. The application filing will include any applicable fees and security deposits. I/we attest to be the owner or lease holder of the tract of land immediately adjoining the project boundary where the proposed facility is to be constructed. • Attachment D. SMP - User's Agreement 1 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - User's Agreement I/we understand the physical location on my/our lot in relation to the common property line with Duke Power, the FERC project boundary, and any deeded flood easements or required building setbacks. I/we understand that this lake was constructed as a working hydropower reservoir for the primariy purpose of producing cost-effective electric energy and that this remains as the lake's primary purpose. I/we understand that the lake and its associated hydropower station are operated by DPNA under the terms of a license issued by the Federal Energy Regulatory Commission (FERC) and that there will be no change in hydro project operations as a result of the construction and/or use of any facilities that I/we may be allowed to place within the FERC project boundary or on DPNA-owned property. I/we understand that lake levels will rise and fall over time in response to weather events and hydro project operations. 1/we acknowledge that DPNA provides no guarantee of any specific quantities (except those identified in the Low Inflow or Hydro Project Maintenance and Emergency Protocols) or quality of water in the lake. I/we acknowledge that DPNA does not guarantee that an approved facility will always have sufficient water depth to be accessible by boat or for other water depth related recreation activities. 1/we understand that the structures to be installed are my/our property and I/we therefore agree to be fully responsible for the permitted reservoir use including maintaining structures in good repair. If the facility is deemed unsafe by a Lake Management Representative, 1/we agree to repair or remove the facility at my/our own expense and within the specified timeframe. This responsibility is considered to transfer automatically along with ownership and leases of the adjoining tract. I/we understand that as an owner or lease holder of property directly adjacent to DPNA's project boundary I/we enjoy the same rights and privileges for general recreational use and enjoyment of the project lands and waters as are afforded the general public. 1/we understand that as an adjoining property owner I/we may, with proper written approval, be considered for expanded privileges as specified in the DPNA Shoreline Management Guidelines (SMG). I/we understand that certain activities specified in the SMG are prohibited because of the DPNA lakes small size, environmental concerns, boating capacity limitations, safety considerations and other reasons. 1/we understand that ownership/interest in a Common Use Facility eliminates the option for me/us to also have a separate facility on any other lot within the affected subdivision that 1/we own or lease.. • Attachment D. SMP - User's Agreement 2 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - User's Agreement 11we understand that Lake Management's approval of the requested reservoir use in no way constitutes assignment of an interest in real property (i.e. land rights). I/we also understand that the permitted use may be revoked at any time by Duke Power or its successors, if deemed necessary to operate its electric business. 11we understand that there will be no change in hydro project operations as a result of construction and/or utilization of the permitted proposed structures. 11we understand that the proposed structure will be used only for the purposes described in the information submitted to Lake Management and other appropriate governing bodies for approval. 11we understand that this lake is open for use by the general public and that maintaining safe and lawful public use is one of the primary lake management objectives of DPNA. I/we understand that the use for which we are applying is a private use and it should not interfere with the general public's safe and lawful use of the lake. I/we understand lake use permit holders have the authority to prevent others from trespassing on the structures they have built.11we also understand that I/we, however, do not have any authority to impede anyone from pursuit of the lawful public recreation enjoyment of FERC project lands and waters. Except as specified otherwise in the Shoreline Management Guidelines or other DPNA documents (e.g. Public Safety Plans), anyone may fish around/under structures built by others, may walk/wade/fish within the FERC project boundary or any DPNA-owned peripheral strip, boat in the lake's waters, etc. without having to get anyone's permission to do so. Boaters may not block ingress/egress to piers/docks. I/we understand that every reasonable effort must be made to minimize any adverse impact on fish, wildlife, and other natural resources. I/we understand that trees and vegetation growing within the project boundary play an important role in the overall environmental condition of the lake. The ecological benefit the vegetation has on the fish and wildlife habitat supports a sound and healthy lake environment. 11we also understand that unauthorized removal of shoreline vegetation (i.e. button bushes, willows, cattails, etc.) and/or disturbance of the shoreline buffer may result in suspension or denial of lake use permitting requests and require me/us to re- establish the vegetation, if the disturbance is found to be in violation of the state or county watershed buffer regulations or Duke Power Nantahala Area Vegetation Management Requirements. I/we agree to notify Lake Management when construction is completed. During the construction period, the weather-proof "Duke Power Approved Lake Use Activity" sign (to be provided by Lake Management) must be posted at the job site, visible from the water's edge. Attachment D. SMP - User's Agreement 3 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - User's Agreement 11we agree to notify Lake Management if the property is sold and provide the name and is address of the new owner. The new owner has 180 days following the date of closing on the property purchase to sign this agreement and its conditions. 11we agree that Duke Power may enter into agreements with third parties permitting use of the project property that promotes the overall recreational purposes of the project. Ywe agree that this agreement confers no right to construct or maintain public and private beaches, marinas or campgrounds. 11we agree that the adjacent Duke Power project property shall be used exclusively for non-commercial recreational purposes. 1/we agree not to rent, lease or otherwise allow third parties (except for temporary use by guests, family members, and renters of the residential property) to use any structures permitted to me/us by DPNA.. 11we agree not to allow any use of the adjacent property and will exercise due care and diligence to prevent all other persons that are affiliated with my/our property (including invitees, family members, guests, etc.) to violate an applicable federal, state or local law or regulation. Examples include but are not limited to nudity, illegal discharge of firearms or fireworks, controlled substance abuse, public drunkenness, public urination or defecation, or other activities determined to be a nuisance by law enforcement officials. • I/we agree to exercise all care and due diligence to preserve and maintain the character of the DPNA's adjacent property. Uwe agree to comply with the DPNA Vegetation Management Requirements. I/we agree further to not allow sewage, including discharge from septic tanks (or similar facilities) or boat holding tanks, garbage, trash, or other waste material to be discharged or dumped into the reservoir, tributaries or adjacent property. 1/we understand that as an adjoining property owner 11we can make no change in land form of land within the FERC project boundary or land owned by DPNA, such as grading, excavation or filling without prior written approval by Lake Management. 11we agree that only floating piers/docks (unless otherwise authorized by DPNA in writing) will be placed on the project property and that no piers/docks or structures will be built on project property without prior written authorization by DPNA. Ywe agree for myself/ourselves, members of my/our family, guests and invitees that I/we assume all risks of personal injury or property damage incident to my/our occupancy and use of the premises; including but not limited to any personal injury or property damage which may be sustained as a result of flood waters or in connection with the rise and fall of water in the reservoir as a result of floods or of the operation of Duke Power's hydro electric facilities. 11we as the adjoining property owner further agree that Ywe will • indemnify, protect, defend, and save harmless Duke Power from any and all loss, cost, Attachment D. SMP - User's Agreement 4 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - User's Agreement claims damages, expenses, judgments and causes of action for all injuries and damages • sustained by the members of my/our family, guests, and invitees arising or claimed to have arisen in connection with their occupancy or use of the DPNA-permitted facility(s). I/we agree to comply with all FERC orders (as modified or interpreted by FERC), with all other applicable FERC Rules and Regulations imposed by Duke Power, and with all rules or regulations imposed on Duke Power by any governmental agency. I/we understand this user's agreement does not have an expiration date and is transferable to the next property owner provided the new owner signs a new agreement within 180 days following the date of closing on the property purchase. 11we have included a check for the applicable filing fees and security deposits and copies of all other necessary permits. 11we acknowledge that DPNA has the right to charge reasonable user's fees for private use of its property and that failure to pay any applicable user's fees in a timely manner can result in the suspension or cancellation of any previously approved lake use permit. 11we agree to maintain any prescribed mitigation activities, that are required in order to gain approval for facility construction, as long as the facility exists. I/we agree that camping is only allowed in designated areas. [/we recognize that 11we have the continuing responsibility onsibili to ensure that the constructed g p ty structures are maintained in good repair, including, but not limited to maintenance of the dock and boat slips, and proper erosion control within the permit area and along the shoreline, and agree to take all reasonable steps necessary to meet this responsibility.11we agree to maintain all structures within the project boundary on DPNA-owned property in a sound condition and in a neat appearance and pay all costs for said maintenance. 1/we agree that if any action is taken by Duke Power to enforce any provision, covenant or agreement contained in this user agreement or DPNA Shoreline Management Guidelines (SMG) or if Duke Power is required to retain an attorney to enforce any provision, covenant or agreement contained in this user agreement or SMG (including, without limitation, the payment of fees due hereunder or the removal of an encroachment constructed in violation of this user agreement or SMG), then Duke Power shall be entitled to recover all of its reasonable costs associated with such an action, including but not limited to, attorneys' fees and court costs incurred in such action and/or enforcement; provided, however, that the undersigned shall be entitled to recover all of its reasonable costs associated with such an action, including but not limited to, attorneys' fees and court costs incurred in such action and/or enforcement if judged to not be in violation of any provision of the User Agreement or SMG. 11we agree that 11we have read and will abide by the DPNA Shoreline Management Guidelines published under separate cover. Attachment D. SMP - User's Agreement 5 Rev: DRAFT 10/15/2003 Attachment D. Shoreline Management Program Documents - User's Agreement ?J C7 • I/we understand that Lake Management representatives may issue Stop Work Directives for any violations of the SMG or engagement in prohibited acts or activities on DPNA property as specifically identified in the SMG. I/we understand that persons found to be in violation will be subject to DPNA sanctions which can include: 1) restoration of the impacted area at the person's expense; 2) loss of consideration of any future lake use permitting activities for up to five years for improper vegetation removal or until vegetation is satisfactorily re-established (even if there is a change in property ownership); 3) revocation of a previously issued permit and loss of consideration of any future lake use permitting activities and/or reinstatement of the revoked permit; 4) increases in fees; 5) modification or removal of non-complying structures; and/or 6) further legal action being taken by DPNA. (Applicant's Name) Lake Street Address City/State/Zip Code Lake Phone Number (Designated Duke Power Agent) Applicant's Signature Home Street Address City/State/Zip Code Home Phone Number Date: Date: Attachment D. SMP - User's Agreement Rev: DRAFT 10/15/2003 Attachment E - Draft Access Area Maintenance Agreement between DPNA and the NCWRC STATE OF NORTH CAROLINA ) NANTHALA AREA • COUNTIES OF CLAY, GRAHAM, ) PUBLIC ACCESS AREAS JACKSON, MACON, AND SWAIN ) AGREEMENT NORTH CAROLINA WILDLIFE RESOURCES COMMISSION NANTAHALA AREA FERC HYDROELECTRIC PROJECTS THIS PUBLIC ACCESS AREA AGREEMENT (this "Agreement") is made this day of 2003, between DUKE ENERGY CORPORATION, a North Carolina Corporation ("Grantor"), and the North Carolina Wildlife Resources Commission (NCWRC), an Agency of the State of North Carolina ("Grantee"); WITNESSETH: WHEREAS, "Duke Power, a division of Duke Energy Corporation, Nantahala Area", is the official title by which Grantor has been licensed by the Federal Energy Regulatory Commission (FERC) to operate the following North Carolina Hydroelectric Power Projects: ? The Bryson Project (FERC Project No. 2601) in Swain County on the Oconaluftee River, ? The Dillsboro Project (FERC Project No. 2602) in Jackson County on the Tuckasegee River, ? The East Fork Project (FERC Project No. 2698) in Jackson County on the East Fork of the Tuckasegee River, ? The Franklin Project (FERC Project No. 2603) in Macon County on the Little Tennessee River, ? The Mission Project (FERC Project No. 2619) in Clay County on the Hiwassee River, ? The Nantahala Project (FERC Project No. 2692) in Clay and Macon Counties on the Nantahala River, Dicks Creek, and White Oak Creek, and ? The West Fork Project (FERC Project No. 2686) in Jackson County on the West Fork of the Tuckasegee River; and which may be referred to individually or collectively as the "Project" or "Projects" and may also referred to collectively as the "Nantahala Area FERC Projects" and; WHEREAS, Grantor owns the tracts of land, here-in-after referred to as "Public Access Areas", the names, acreage and boundaries of which are shown in Exhibit A attached hereto, adjacent to the aforementioned Projects' waters and rivers which provide access for public recreation purposes; and, WHEREAS, Grantor desires to lease portions of the Public Access Areas shown in Exhibit A to state and local governmental agencies, commercial vendors or other is interested parties, through its "Access Area Improvement Initiative", which is designed Attachment E. Draft DPNA/NCWRC Access Area Maintenance Agreement Rev: DRAFT 10/15/2003 Attachment E - Draft Access Area Maintenance Agreement between DPNA and the NCWRC to ensure the development and maintenance of a variety of high quality recreational • opportunities for the general public; and, WHEREAS, the Grantee agrees to: (1) enforce the laws of the State of North Carolina and its own regulations for which it is responsible on all parts of the Public Access Areas which are the subject of this Agreement; and (2) maintain the Public Access Areas shown on Exhibit A, except for those portions of the Public Access Areas that have been or may be leased by Grantor to another entity; and, WHEREAS, Grantor has agreed to pay Grantee $ annually for the maintenance of the Public Access Areas which are the subject of this Agreement and Grantee will make, on a matching fund basis, an annual minimum of $ for capital improvements, with matching funding sources coming from but not limited the following sources: (1) Grantor, (2) a state, local, or other governmental agency, (3) a third party lessee, or (4) donation from an individual. NOW, THEREFORE, the parties enter into the following Agreement, subject to the exceptions and reservations and upon the terms and conditions and for the purposes in this instrument set out for the Public Access Areas, shown on Exhibit A of this Agreement. 1. Term: This Agreement shall become effective as soon as signed by the • parties hereto and shall terminate on 20. Except, however, this Agreement may be renewed after the termination date, but Grantor shall not be obligated to renew. Grantor may terminate this Agreement at any time if directed to do so by the FERC or its successor agency having jurisdiction over hydroelectric reservoirs which are subject to the Federal Power Act. Grantor may also terminate this Agreement pursuant to Paragraph 15 herein. 2. Previous Agreements: This Agreement replaces and supercedes any and all prior Agreements that may have been entered into by Grantor and Grantee for said Public Access Areas and such prior Agreement or Agreements are of no further force or effect. 3. Wildlife Protection Access: Grantee, its agents and assigns shall have the rights of ingress and egress upon all of the Public Access Areas of Grantor designated on Exhibit A at any and all times for the protection and propagation of wildlife. 4. Law Enforcement: Grantee has the responsibility under this Agreement to enforce the laws of the State of North Carolina and its own regulations for which it is responsible, on all portions of all Public Access Areas listed in Exhibit A , except those portions of the Public Access Areas that have been leased to another party. 5. Cost-Share: Grantor has agreed to pay Grantee a $ per year fee to maintain the Public Access Areas which are the subject of this Agreement. In • return for this annual fee, Grantee has agreed to provide a minimum of $ _ per Attachment E. Draft DPNA/NCWRC Access Area Maintenance Agreement Rev: DRAFT 10/15/2003 2 Attachment E - Draft Access Area Maintenance Agreement between DPNA and the NCWRC year toward capital improvements on the Public Access Areas, provided that matching • funds are available on a 50-50 match basis. Matching funding can come from numerous sources, including but not limited to (1) Grantor, (2) a state, local, or other governmental agency, (3) a third party lessee, or (4) donation from an individual. That portion of the funding provided for capital improvements to match Grantee's funds may only be utilized for improvements that directly benefit boating access users or public fishing area users. The annual cost-share amount can exceed $ _ if the Grantee has additional funds available for improvements to the Public Access Areas. Further, to insure Grantee retains the potential to utilize "U.S. Fish and Wildlife Sportfish Restoration Funds", the source of matching funds shall not be a federal government source. All capital improvements constructed with these matching funds, that are not located within the physical boundaries of the Grantee managed portion of the Public Access Area, must remain accessible and free of charge to boating access facility users and public fishing area users for the duration of this Agreement. The Grantee's contribution towards capital improvements, (which may include materials and/or labor in lieu of dollars), will be detailed in an annual report which must be submitted to Grantor prior to the Annual Coordination Meeting (see Paragraph 6), for discussion. If Grantee's contribution will be in materials and/or labor, such activities may not proceed until approved by Grantor. 6. Compliance with Federal. State and Local Laws: Grantee agrees that its use of the Public Access Areas as herein provided will be consistent with all FERC • orders and regulations regarding recreation opportunities and development at licensed projects, and all other applicable state, federal and local laws as well as all ordinances, rules, regulations and sanctions of any regulatory body or governmental agency (state, federal or local) having jurisdiction in the subject premises, and Grantee's use of the aforesaid subject premises will comply with all applicable Duke Power Lake Management requirements and will not endanger health or safety, create a nuisance or otherwise be incompatible with the overall recreation use of the Bryson, Dillsboro, East Fork, Franklin, Mission, Nantahala, and West Fork Projects. 7. Boat Launching Facilities: Grantor will provide public boat launching facilities where such facilities are indicated on Exhibit A, for the duration of this Agreement. Should relocation or replacement of public boat launching facilities be required for any of the Public Access Areas that are the subject of this Agreement, the major repair cost measures defined in Paragraph 12 will be implemented to determine the funding for such relocation or replacement. 8. Si na e: Grantor will provide all information as may be required at a Public Access Area's entrance, boat access ramp, or other required site, for signage as set forth in the Nantahala Area FERC Project licenses and Grantee will erect and maintain all said signs. 9. Maintenance: Grantee shall provide routine maintenance and repairs at all • the Public Access Areas, including but not limited to those items specified in `a' through `o' below. Attachment E. Draft DPNA/NCWRC Access Area Maintenance Agreement Rev: DRAFT 10/15/2003 3 Attachment E - Draft Access Area Maintenance Agreement between DPNA and the NCWRC • a. Entrance Road: Entrance roads are to be maintained in a safe, open, and clear condition and repaired on an as needed basis to ensure a good quality surface and drainage is maintained. Repairs may include, but are not limited to: repairing asphalt and maintaining gravel drives clear of ruts by grading and/or adding stone, keeping side ditches, water bars and culverts clear of water flow impediments, painting lines, and repairing guardrails. b. Parking Lots and Turnarounds: Parking lots and turnarounds are to be maintained in a safe condition and repaired on an as needed basis to ensure good drainage. Repairs may include, but are not limited to: repairing asphalt, repainting faded lines and letters, painting new lines and letters, repairing curbing, applying asphalt sealer, maintaining gravel areas clear of ruts, ensuring proper drainage by grading and/or adding stone, and keeping all areas clear of debris, weeds, and grass. c. Courtesy Docks and Fishing Piers: Courtesy docks and fishing piers are to be maintained in a safe condition and repaired as needed to ensure user safety. Repairs may include, but are not limited to: replacing broken or defective parts, replacing broken or loose pilings, replacing defective floats, insuring dock sections remain attached to each other, maintaining stone level around dock abutments and ramps, insuring nails and fastening devices are flush with dock surfaces, ensuring boat bumpers remain in sound condition, and maintaining handrails free of any rough • or sharp areas. d. Boat Launch Ramps: Boat Launch ramps are to be maintained in a safe condition and repaired as needed to ensure user safety. Repairs may include, but are not limited to: removal of debris and silt or any items that could hinder boat launching, maintaining stone at a sufficient level along edges and ends of ramps to ensure safety, and repairing any holes in ramps. e. Drainage Control Devices: Drainage control devices provided to eliminate or minimize erosion problems are to be maintained in a safe condition and repaired as needed to ensure good drainage. Repairs may include, but are not limited to: correcting erosion problems and keeping drainage ditches and culverts clear of all debris, trees, and other drainage impediments. f. Access Area Shoreline: The entire shoreline of all Pubic Access Areas is to be maintained in a safe condition and repaired as needed to ensure safety of recreation users and to maintain effective erosion control. Repairs may include, but are not limited to: maintaining or adding erosion control materials and removing brush or trees that threaten to displace erosion control materials or threaten the integrity of the bank. g. Dead or Diseased Tree Removal: All dead or diseased trees or fallen tree • and limbs that are or could impact the use or maintenance of the Public Access Area are to be removed in a timely manner. Attachment E. Draft DPNA/NCWRC Access Area Maintenance Agreement Rev: DRAFT 10/15/2003 4 Attachment E - Draft Access Area Maintenance Agreement between DPNA and the NCWRC h. Tree Maintenance: Ensure that all trees bordering parking areas, roads and/or walkways do not block driver vision; do not interfere with the movement of pedestrians, vehicles, and boats; and do not impede mowing and maintenance of the Public Access Area. Trees that may block vision or interfere with vehicle and boat movement or that have dead limbs that could injure recreation users if they fall will be promptly removed from the site. i. Trash Removal: Trash receptacles placed in Public Access Areas will be maintained in a safe and sanitary condition and must be sized to adequately handle the volume of debris normally disposed of in the area. All trash receptacles should be emptied weekly or more often so that the accumulation of trash/refuse/junk does not present a safety or health hazard. Heavily used Public Access Areas may require more frequent trash removal and frequency of trash removal may need to be increased during peak recreation seasons and on weekends. All refuse and trash should be removed from the grounds before mowing and if scattered around the Public Access Areas removed on a weekly basis or as often as needed to ensure a safe and hazard free area. • j. Grass and Ground Cover: Ground covers, such as shrubs, grass, or mulch, will be provided throughout the Public Access Areas and should be maintained in a safe, environmentally sound, and aesthetically pleasing condition. Mulch and/or grass areas should be maintained at a height of not less than three (3) inches or more than eight (8) inches. Grass is to be mowed to the ditch or tree line along roadways, to the tree line around parking lots and to the tree line in open areas. Mowing an additional four (4) feet (or one mower width of at least three [3] feet) on the opposite side of the ditch line should be done in May, August and November or whenever appropriate to keep vegetation growth from spreading to other areas. k. Use of Herbicides: Environmentally acceptable herbicides approved by the Environmental Protection Agency and/or the North Carolina Department of Agriculture may be utilized in Public Access Areas as needed to control unwanted vegetation in driveways, parking lots, turnaround areas, designated foot paths, stabilized shoreline areas and on boat ramps. Herbicide may be applied to the first 6 (six) inches of grass around the edges of the parking lots, turnarounds and roads and around signposts, trash can pads, light poles and culverts to minimize the amount of trimming needed. 1. Use of Fertilizer: Use of fertilizer is permitted on a seasonal basis as needed. Public Access Areas should be fertilized twice per year or at the times recommended and with the type of fertilizer recommended by the manufacturer for the type of material being treated. • in. Use of Grass Seed: The timing of, preparation for, and application of grass seed will be dependent on the manufacturer's recommendations for the type of seed being applied. Attachment E. Draft DPNA/NCWRC Access Area Maintenance Agreement Rev: DRAFT 10/15/2003 5 Attachment E - Draft Access Area Maintenance Agreement between DPNA and the NCWRC • n. Side: All signage provided by the Grantee must be maintained in safe and readable form. o. Lighting and Utility Lines: All lighting must be installed to current building and electrical code requirements and maintained in a safe manner. The Grantee will assume all costs associated with any lighting and its maintenance, including but not limited to payment of power bills. To the maximum extent practicable, new or modified utility lines and/or boating facilities should be designed so that overhead utility lines do not cross boat access roads, parking lots, turn-around areas, or boat launch ramps. Any overhead utility lines that have no other practical alternative to being located within the areas defined above, must be designed with the height clearances required by the National Electric Safety Code or any other applicable electrical safety codes, whichever is the most restrictive and provides for the greatest height. 10. User Fees: User fees on any portion(s) of the Public Access Areas subject to this Agreement and under control of Grantee, may only be charged under the following conditions: a. Review Process: At least sixty (60) days prior to implementation of user fees, all parties will be provided with a copy of the proposed fee schedule . and a written proposal describing how the fees will be collected and how the proceeds will be distributed and utilized. (Note: As a general rule, proceeds from user fees should be equitably shared among the parties considering the site uses to which the fees apply and the relative proportion of each party's operating and maintenance expenses for those applicable site uses.) b. Prior Written Approval Required: User fees may not be implemented until all involved parties have agreed and written approval has been received from Grantor. c. Review of User Fees: User fees established for the Public Access Areas must be a reasonable and customary amount and are subject to review and approval by the FERC to ensure Project license compliance. d. Exemptions from User Fees: Grantor's employees, Grantee's employees, third party lessee's employees, local law enforcement officials, local environment and public health officials, and local emergency response crews, or any other official operating in his/her official capacity will be exempt from user fees. 11. Improvements: Grantee shall have the right, at its own expense, to make additions or modifications to facilities at the Public Access Areas, to change operating hours of such facilities, and to implement or modify user fees consistent with the purpose • of the Public Access Areas. However, Grantee shall submit such requests in writing to Attachment E. Draft DPNA/NCWRC Access Area Maintenance Agreement Rev: DRAFT 10/15/2003 6 Attachment E - Draft Access Area Maintenance Agreement between DPNA and the NCWRC Grantor and shall receive written approval from Grantor prior to initiating any work or instituting changes to the hours or user fees at the Public Access Areas. Additions to or modifications of any facilities will require the submittal of detailed plans, including but not limited to construction plans and elevation drawings. Major additions or modifications may require the approval of applicable local, state, and federal agencies prior to submittal of the request to Grantor and in certain situations the Grantor will need to submit Grantee's written request to the FERC for approval, prior to issuance of approval by Grantor. 12. Major Repair Costs: When major "non-routine" repairs or replacement of any facilities becomes necessary, Grantor and Grantee will consult to identify the resources necessary to make such repairs, and then determine the availability of the necessary resources and/or funding including the cost-share funding as defined in Paragraph 5. Approval by both parties will be required prior to work being initiated. Major repairs may include, but are not limited to repair or replacement of docks, piers, boat launch ramps, access roads, or parking lots. 13. Annual Coordination Meeting: At least once each year, Grantor and Grantee will meet, during the period of January to March, to discuss and coordinate future development plans for improvements to the Public Access Areas. Potential projects for joint funding in any given year will normally be presented and discussed during the previous year's Coordination Meeting, with a final decision made not later than June of the year before construction is to be initiated. Additional topics for the Coordination Meeting may include any proposed changes in operating hours or the implementation or modification of any user fees. Decisions on projects, operating hours and user fees must be acceptable to both Grantor and Grantee in order to be implemented. 14. Joint Inspection: Grantor and Grantee will perform an annual joint physical inspection of each of the Public Access Areas included in this Agreement, to insure the Public Access Areas are being maintained in a safe manner and to the levels mutually acceptable to Grantor and Grantee. 15. Termination: This Agreement or any part thereof may be terminated by either party upon ninety (90) days written notice to the other. Upon termination or expiration of this Agreement, Grantee shall have the right to remove any and all buildings, apparatus and materials supplied by them for the purpose of this Agreement for a period of ninety (90) days. If Grantee shall not have removed its personal property, any remaining buildings, apparatus or materials shall become the property of the Grantor. 16. Amendments: Amendments to this Agreement may be proposed by either party upon thirty (30) days written notice to the other, and such amendments, when agreed to by both parties, shall become effective on the date such Amendment is signed by the parties hereto. • 17. Transfer or Assignment: Grantee may not transfer or assign this Agreement to any other party or entity. Attachment E. Draft DPNA/NCWRC Access Area Maintenance Agreement Rev: DRAFT 10/15/2003 7 Attachment E - Draft Access Area Maintenance Agreement between DPNA and the NCWRC • 18. Changes to Public Access Areas: Grantor reserves the right to move, alter or change the location, boundaries or layout of any Public Access Area or private road access to any Public Access Area, wherever and whenever it shall become necessary in order to insure full public utilization of the area or to prevent any noxious or offensive use of any area, or whenever the land then occupied by such Public Access Area or road is necessary to the operations of Grantor. In the event the relocation of any Public Access Area becomes necessary, Grantor will notify the Grantee and will attempt to relocate the affected Public Access Area on land owned by Grantor and at a location satisfactory to the Grantee. Grantor may add, remove or close all or any portion of any Public Access Area, at any time, after notifying the Grantee of the proposed action. 19. Notice of Changes to Design or Operation: Grantor will notify Grantee of all new orders issued by the FERC that may impact the existing or future design and/or use of the Public Access Areas which are the subject of this Agreement, in writing. 20. Response to Increase in Recreation Use: Grantor will in good faith endeavor to accommodate future increases in public recreation demand on any or all of the FERC Nantahala Area Projects by either arranging for the expansion of the Public Access Areas which are the subject of this Agreement or by arranging for new and/or replacement public recreation facilities on lands that are or may become available for such purposes and are consistent with the operation of Grantor's business. 21. FERC License Conflicts: This Agreement is subject to the terms and conditions of the licenses issued by the FERC for the Bryson, Dillsboro, East Fork, Franklin, Mission, Nantahala, and West Fork Projects. In the event of any conflict between the terms and conditions of this Agreement and the terms of any of the individual Project licenses, it is agreed that the terms of the applicable Project(s) license shall prevail. 22. Reservation of Use: The right to use the Public Access Areas which are the subject of this Agreement for Project purposes and for any other purpose consistent with Grantor's business operations is hereby reserved to the FERC project licensee, its successors and assigns. 23. Reservation of Authority: No terms or conditions herein contained shall be construed as limiting or affecting in any way the authority of Grantor in connection with its exercise of proper protection and administration of the Public Access Areas or its Nantahala Area FERC Projects. 24. Fire Protection: In the event of a fire within or threatening to the lands or facilities of any of the Public Access Areas, Grantee agrees to assist Grantor with fire protection. • 25. Leases of Portions of the Public Access Areas: Grantor has the right to lease portions of the Public Access Areas to state or local agencies, third parties, or Attachment E. Draft DPNA/NCWRC Access Area Maintenance Agreement Rev: DRAFT 10/15/2003 8 Attachment E - Draft Access Area Maintenance Agreement between DPNA and the NCWRC individuals for the provision of additional public recreation facilities and the terms of this • Agreement will become a part of the lease on said portions of the Public Access Area, subject to the approval of all parties. 26. Public Use of Facilities: Grantee will allow any recreation user of any leased portion of the Public Access Areas to cross and use the portion of the Public Access Area under control of Grantee, for the purpose of viewing the lake or any other lawful recreation activity. 27. Entry by Additional Lessees: Additional Lessees, its agents and representatives, created by the lease of a portion of the Public Access Areas as provided in Paragraph 26 above, may at all reasonable times enter, cross and use the portion of the Public Access Areas maintained by the Grantee, for the purpose of installing and maintaining utility lines, roads and trails according to the previously approved facilities improvement plan for the Public Access Areas. 28. Utility Easement: Grantor reserves an easement to build, construct, maintain and operate electric distribution/transmission lines on, over, along and above the leased premises. Grantor also reserves the right, privilege and easement to erect, construct, reconstruct, replace, maintain and use towers, poles, wires, crossarms and other appliances and fixtures for the purpose of transmitting or distributing electric power, for said Grantor's communication purposes, and for any other purpose that is, in Grantor's sole discretion, consistent with Grantor's business operations, together with the right to keep said lines, appliances, and fixtures free of structures, trees and other objects that may endanger or interfere with same. 29. Flooding: Grantor reserves the unlimited right to back or flood the waters or tributaries of the Nantahala Area FERC Projects, from time to time and at any and all times over and upon the leased premises or any portion of the same, to such extent the flooding may be necessary or convenient in connection with the practical operation of its hydroelectric power plants located or to be located in the future in the Nantahala Area. Grantee agrees that any damage it may suffer as a result of such flooding shall not be claimed or charged against Grantor. Grantee hereby waives all claims against Grantor for damages resulting from floods that may occur on the rivers or any tributary associated with the Bryson, Dillsboro, East Fork, Franklin, Mission, Nantahala, and West Fork Projects. 30. FERC Project Restoration: Grantor shall be under no obligation to Grantee to maintain or continue to operate the Bryson, Dillsboro, East Fork, Franklin, Mission, Nantahala, and/or West Fork Projects and should said Project(s) be damaged, destroyed or removed, the Grantor shall be under no obligation to restore or rebuild same, and Grantee hereby waives all claims against Grantor for damages to or destruction or removal of said Project(s). 31. Indemnity: Grantee, to the extent allowed by applicable North Carolina law, specifically as may be authorized by the General Statutes of North Carolina, Article Attachment E. Draft DPNA/NCWRC Access Area Maintenance Agreement Rev: DRAFT 10/15/2003 9 Attachment E - Draft Access Area Maintenance Agreement between DPNA and the NCWRC 31, Chapter 143-291, entitled "Tort Claims Against State Departments and Agencies", • covenants to indemnify and save harmless Grantor from and against any and all claims, liability, loss or damage, arising from any conduct, work or thing done under the terms of this Agreement, to include injury or damage to any person or persons, including Grantor, or to the property of any person, or persons or corporations occurring on or within the Public Access Areas which are the subject of this Agreement, as the result of any activity of Grantee, its agents, employees, or any other person or entity under the direction of the Grantee, and for any protection, mitigation and enhancement measures or activities required by FERC or its successor agency in connection with the activities conducted by Grantee hereunder. Upon the State of North Carolina (State) contracting with an entity for the purpose of constructing any facilities on the Public Access Areas that are the subject of this Agreement, Duke Energy Corporation shall be named as an insured or an additional insured on a policy of insurance covering the scope of such activity prior to the commencement of any activity by the State, its agents or contractors. Any contractor or subcontractor performing work on property that is the subject of this easement shall have in place prior to commencement of any activity and during the performance of any activity, the following types of insurance and coverage limits: ? General Liability Coverage - Two million dollars per occurrence. ? Auto Liability - one million dollars per occurrence. ? Workers Compensation within statutory limits. ? Employers Liability - five hundred thousand dollars each accident. ? Contractor's Pollution Liability Coverage - one million dollars per occurrence. 32. Limitation of Liability: Grantor and Grantee agree and warrant that any and all work performed within the Public Access Area will be performed with professional thoroughness and using acceptable standard business practices. Grantor's total cumulative liability to Grantee for claims of any kind whether based on contract, tort (including negligence and strict liability and excluding willful misconduct), under any warranty or otherwise, for any loss or damage relating to this Agreement, shall in no case exceed the cost of completing the work in accordance with acceptable business practice, and Grantee releases Grantor from all further liability in excess of this amount for any work performed under this Agreement. Grantee further releases Grantor from any and all liability resulting from any injury of any employee of Grantee or anyone performing any service at the direction of Grantee on the Public Access Areas, excluding any acts of willful misconduct of the Grantor. Neither party shall be liable, whether based on contract, tort (including negligence and strict liability), under any services or work performed relating to this Agreement, for any consequential, indirect, special, or incidental loss or damage, any damage (except to the extent damage resulted from willful misconduct) to or loss of any property or equipment. This limitation of, or protection against liability shall also protect directors, officers, employees, agents, consultants, suppliers, subcontractors, and affiliated entities is and their directors, officers, employees, agents, consultants, suppliers, subcontractors, Attachment E. Draft DPNA/NCWRC Access Area Maintenance Agreement Rev: DRAFT 10/15/2003 10 Attachment E - Draft Access Area Maintenance Agreement between DPNA and the NCWRC parents, subsidiaries and affiliates of the Grantor and shall apply regardless of the fault is (excluding willful misconduct), negligence or strict liability of the respective party. Grantee waives and will require its insurers to waive all rights to recovery and claims of any kind, including rights and claims to which its insurers or another may be subrogated, against Grantor arising out of damage to, or loss of use of any of Grantee's property, located on the Public Access Areas, whether based on contract, tort (including negligence and strict liability), under any warranty or otherwise. These waivers are effective as to all damages to, or losses of use of property arising out of or relating to this agreement or deficiencies in the services provided hereunder and Grantee hereby covenants that no such action or claim shall be brought by or through Grantee on any theory whatsoever. In the event Grantee or its insurers recover damages from a third party for losses or damages to which the foregoing waivers apply, Grantee shall indemnify and hold Grantor harmless against any liability for any such losses or damages which said third party recovers from Grantor and any expenses (including attorney fees and other cost of investigation and defense) related hereto. The limitation of liability in this provision shall apply notwithstanding any other provision of this Agreement. 33. Non-warranty, As Is: Grantor makes no representation or warranty, express or implied, and will bear no responsibility, as to the existing or future water • quality or quantity in the lakes and rivers associated with the Bryson, Dillsboro, East Fork, Franklin, Mission, Nantahala, and West Fork Projects or the sufficiency or suitability of the Public Access Areas for use as a public park and/or public recreation site. Grantee accepts the Public Access Areas in "AS IS" condition. 34. Survival: Provisions of this Agreement for Termination #15, Limitations of Liability #32, Survival #34 and the indemnification provision of this Agreement shall survive the termination or cancellation of this Agreement and shall remain in effect. 35. Recovery of Fees and Costs: If any action is taken by Grantor to enforce any provision, covenant or agreement contained in this Agreement or if Grantor is required to retain an attorney to enforce any provision, covenant or agreement contained in this Agreement (including, without limitation, the removal of an encroachment constructed on any Public Access Area in violation of this Agreement), then Grantor shall be entitled to recover from Grantee all Grantor's reasonable attorneys' fees and court costs incurred in such action and/or enforcement. 36. Notices: Wherever in this Agreement it shall be required or permitted that notice be given by either party to this Agreement to the other, such notices must be in writing and must be given personally or forwarded by certified mail addressed as follows: • Attachment E. Draft DPNA/NCWRC Access Area Maintenance Agreement Rev: DRAFT 10/15/2003 11 Attachment E - Draft Access Area Maintenance Agreement between DPNA and the NCWRC To Grantor: Duke Energy Corporation • Attn: Fossil/Hydro Department, Lake Management EC 12Q P.O. BOX 1006 Charlotte, NC 28201-1006 To Grantee: North Carolina Wildlife Resources Commission Division of Engineering Services Attn: Division Chief 1720 Mail Service Center Raleigh, NC 27699-1720 [Signature Pages Follow] C • Attachment E. Draft DPNA/NCWRC Access Area Maintenance Agreement Rev: DRAFT 10/15/2003 12 Attachment E - Draft Access Area Maintenance Agreement between DPNA and the NCWRC • IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed this the day and year first above written. ATTEST: DUKE ENERGY CORPORATION By By (Name) (Name) (Title) STATE OF NORTH CAROLINA COUNTY OF I, a Notary Public for the above State and County, hereby certify that personally came before me this day and acknowledged that she is of DUKE ENERGY CORPORATION, a corporation, and that by authority duly given and as the act of said corporation, the foregoing and annexed instrument was signed in its name by ,its , sealed with its corporate seal and attested by as its WITNESS my hand and official seal, this the day of , 2003. Notary Public My Commission Expires: • Attachment E. Draft DPNA/NCWRC Access Area Maintenance Agreement Rev: DRAFT 10/15/2003 13 Attachment E - Draft Access Area Maintenance Agreement between DPNA and the NCWRC r? ATTEST: By STATE OF NORTH CAROLIA By (Name) (Name) Executive Director, North Carolina Wildlife Resources Commission STATE OF NORTH CAROLINA COUNTY OF I, , a Notary Public for the above State and County, hereby certify that personally came before me this day and acknowledged that -he is of THE STATE OF NORTH CAROLINA and that by authority duly given and as the act of said corporation, the foregoing and annexed instrument was signed in its name by its , sealed with its corporate seal and attested by as its WITNESS my hand and official seal, this the day of , 2003. My Commission Expires: • Notary Public Attachment E. Draft DPNA/NCWRC Access Area Maintenance Agreement Rev: DRAFT 1 011 512 003 14 Attachment F -Dillsboro Dam Removal EA Executive Summary • EXECUTIVE SUMMARY Duke Power, division of Duke Energy Corporation (Duke), has prepared this combined draft Environmental Assessment (EA) and Biological Assessment (BA) in accordance with the procedures for implementation of the National Environmental Policy Act (NEPA) through the U.S. Fish and Wildlife Service (USFWS) as stated by the Council of Environmental Quality (USFWS undated). The purpose of this EA is to disclose, identify, evaluate, and determine the actions that may be taken by Duke, the supporting federal and state agencies, and other stakeholders in determining the future of the existing Dillsboro Dam. The assessment describes and evaluates alternatives to the proposed course of action. Duke will use the results of this assessment as an objective decision-making tool in addressing the future of the Dillsboro Dam and Powerhouse. In association with this EA, is a companion Biological Assessment (BA) to determine what extent the above mentioned actions may have on the federally listed Appalachian elktoe mussel (Alasmidonta raveneliana). This biological assessment is prepared in accordance with legal requirements set forth under Section 7 of the Endangered Species Act (16 U.S.C 1536 (c), and follows the procedures established through the USFWS's NEPA guidance and ESA guidance. The Dillsboro Project is located on the Tuckasegee River near the Town of Dillsboro in Jackson County, North Carolina. Duke operates this hydroelectric project under a license from the Federal Energy Regulatory Commission (FERC) (FERC Project No. 2602). This existing license expires in 2006, and the process of obtaining a subsequent license officially began in 2000 with Duke's release of the First Stage Consultation Document. The Tuckasegee Cooperative Stakeholder Teams (TCST) Settlement Agreement (Agreement), which will be signed by the authorized members in late October 2003, includes a Multi-Project Resource Enhancement measure of the potential removal of Dillsboro Dam and Powerhouse. As stated in the Agreement "...the Parties acknowledge that Duke Power worked with the USFWS, North Carolina Division of Water Resources (NCDWR), North Carolina Division of Water Quality (NCDWQ), North Carolina Wildlife Resources Commission (NCWRC), the North Carolina State Historic Preservation Office (NCSHPO) and the Eastern Band of Cherokee Indians (EBCI) and complete(d) the necessary environmental, cultural resource, and engineering • assessments regarding the removal of Dillsboro Dam and potentially the Dillsboro Powerhouse. These assessments evaluate(d) the potential effects of dam removal on aquatic species; Attachment F. Dillsboro Dam Removal EA Executive Summary.doc Rev: Draft 10/15/2003 1 Attachment F -Dillsboro Dam Removal EA Executive Summary determined the extent of any cultural resources impacts, and considered the options of removing • the powerhouse." Therefore the need for taking action on this Project is directed towards providing and satisfying the important resource enhancement initiative that will mitigate for the various impacts of the Duke Power hydro projects, as described in the Agreement. The removal of Dillsboro Dam would provide mitigation for fish passage and instream flow relief on the other Nantahala projects. Based on progress in association with the above-mentioned Settlement Agreement, an initial scoping meeting was conducted in which the preliminary details and proposed outline of the EA/BA were described to the TCST stakeholders. Representatives attending this initial scoping meeting included: ¦ USFWS; ¦ Natural Resources Conservation Service (NRCS); ¦ U.S. Forest Service; ¦ EBCI; ¦ NCWRC; ¦ NCDWR; ¦ NCDWQ; ¦ Duke Power In addition to this and several other issue update meetings, consultation letters (request for information) were sent to the above stakeholders and several local governments (e.g., Town of Dillsboro). Responses from these stakeholders, as well as the verbal comments from the scoping and update meetings were used to develop this document and address the major issues. Based on both internal discussions and stakeholder discussions and the nature of the Project, several issues were identified that will require detailed evaluation and are important in the decision-making analysis in comparison of the alternatives. These issues are as follows: Sediment Quantity and Quality The stakeholders have identified that sediment accumulation in the Dillsboro Project is an area of concern. Discussions and analysis concerning this issue focus on the estimated quantity of • existing sediment affected by the alternatives; quality (i.e., contamination) and Attachment F. Dillsboro Dam Removal EA Executive Summary.doc Rev: Draft 10/15/2003 2 Attachment F -Dillsboro Dam Removal EA Executive Summary mobilization/transport of any existing contaminated sediments; potential downstream sediment . transport and distribution associated with the alternatives and any impacts; and any sediment management techniques to be employed with the alternatives. Aquatic Life The stakeholders also identified that the alternatives may affect the abundance, types, and movement/passage of aquatic life both upstream and downstream of the existing dam. EA discussion and analysis addresses the existing conditions associated with the fishery and macroinvertebrate resources and the potential effects to them from each of the alternatives. Rare, Threatened, and End=4ered (RTE) Species The scoping process for this Project and subsequent field studies has identified two RTE mussel species and their critical habitats immediately downstream of the Dillsboro Dam. These species include the Appalachian elktoe (federal and state endangered) and the wavy-rayed lampmussel (Lampsilis fasciola) (NC Species of Concern). Two fish species, the wounded darter (Etheostoma vulneratum) and the olive darter (Percina squamata), both NC Species of Concern, are found immediately downstream of the Project. The only other RTE species found within the Project is the aquatic Eastern hellbender (federal and NC Species of Concern). This EA is required to address the effects of the alternatives on these species and also discuss the protection measures to be potentially implemented. The companion BA addresses the impacts to the federally listed Appalachian elktoe. Wildlife Several hundred little brown bats (Myotis lucifugus) are known to exist in the Dillsboro Powerhouse. The USFWS recommended that protection measures (e.g., bat box installation) might potentially be needed if the powerhouse removal or refurbishment alternative is selected. This EA will address the effects of the alternatives on these species and also discuss the protection measures to be potentially implemented. Cultural Resources The EBCI identified that the Project alternatives and any subsequent drawdown exposure may affect previously unknown cultural resources. Moreover, the NCSHPO is currently reviewing the status of the Dillsboro Powerhouse in relation to the National Register of Historic Places. This • Attachment F. Dillsboro Dam Removal EA Executive Summary.doc Rev: Draft 10/15/2003 3 Attachment F -Dillsboro Dam Removal EA Executive Summary assessment will address the effects of the alternatives on these cultural resources and also discuss • the protection measures to be potentially implemented. Other Resource Issues Several other issues are also included in the discussion and analysis of this assessment (e.g., recreation and aesthetics). Although they do not require extensive discussions in this section, they have been factored into the cost/benefit analysis associated with this Project. Alternatives Associated with the Dillsboro Dam The alternatives considered in this EA/BA for the Dillsboro Dam are limited to No Action, Partial Removal, and Full Removal. In association with the future of the Dillsboro Powerhouse, the alternatives include No Action, Closure, and Full Removal. Alternative A (No Action) has been established as a benchmark against which the proposed action of the Dillsboro Dam may be compared and evaluated from a current baseline. Alternative A is associated with No Action or continued operation of the Project. This alternative would essentially keep the Project and the dam in the present state of operation. This Project generates a relatively small amount of electricity (918,000 kWh per year) and will continue to do so under this alternative. The dam, as described below, will remain intact and in place and will continue forming the Dillsboro Reservoir. The Dillsboro Dam is a concrete masonry structure (cyclopean dam) that is approximately 310 feet in length and 12 feet high. Duke will continue to serve the same loads and service areas that they now serve. They will continue to retain the benefits of low-cost hydroelectric generation for the customers in the Nantahala service area. With this No Action alternative, there would be no new major construction activities and the current operations would continue through the existing and any future license articles and conditions. Selection of this alternative would result in no change in the current environmental conditions associated with the Project. As stated in the Final FERC license application associated with the Project, the Project has no discernable effects on temperature or dissolved oxygen and is in compliance and in support of all other applicable water quality standards and designated uses. • Attachment F. Dillsboro Dam Removal EA Executive Summary.doc Rev: Draft 10/15/2003 4 Attachment F -Dillsboro Dam Removal EA Executive Summary is The Dillsboro Project has acted as sediment sink since completion of the dam. Although it is now in a steady state since the reservoir has filled with sediment. Currently, an estimated 100,000 cubic yards of sediment is located upstream of the dam and consists of particles that are generally less than 10 mm in size. Thickness of the deposits is estimated to be up to 12 feet near the dam and decreases to zero at the upstream end (i.e., 0.8 miles upstream of the dam). If the No Action alternative is pursued, existing sediment conditions of storage and transport will continue. The storage and transport of sediment within and below the reservoir is assumed to be in equilibrium with current conditions and will likely not change. Based on recent fish sampling surveys (Duke 2003), there is some indication that the presence of the dam may be a factor in the limited distribution or missing components of the fish fauna upstream of the Project (e.g., darters). Although some of these species may be reduced due to geographic, gradient or other habitat parameters, the most obvious change in species composition may be due to the restrictions of upstream movements due to the dam. There is also a large population of listed Appalachian elktoe mussels immediately downstream of the Project. This • mussel population would continue to exist in its current state. The NCSHPO has stated that there are no known archaeological sites located within the floodpool or shoreline of the Project or likely to be found there. The adoption of this alternative would result in no change in the floodpool elevations and shoreline areas within the Project boundaries. There are currently no developed recreation facilities such as boat launches or campsites within the Project boundaries. Although the Town of Dillsboro maintains two primary access areas on either side of the Tuckasegee River downstream of the Project, use of the Project impoundment and immediate tailrace for recreation is limited (i.e., fishing and boating). Although the existing Project does provide very limited reservoir recreation such as fishing and boating, it will continue to provide a barrier to free-flowing river types of recreation. There are no ongoing effects of current Project operation on land use, aesthetics or socioeconomic resources. Alternative B (Partial Removal) is associated with the partial removal or breeching of the existing Dillsboro Dam. With this alternative, the Project would cease to operate and no longer generate electricity for Duke Power. For this alternative, the dam is to be removed to the riverbed over a 120 ft. width at the center to right side of the dam, to pass the low to normal river flow Attachment F. Dillsboro Dam Removal EA Executive Summary.doc Rev: Draft 10/15/2003 5 Attachment F -Dillsboro Dam Removal EA Executive Summary (looking downstream). The remainder of dam is removed to approximately 4 to 5 ft. height, and is left in place. High river flows will pass over this section. The river will be restored to its assumed pre-dam depth over the 120 ft. width. Removal will be accomplished by use of hydraulic equipment to remove the dam in accordance with a staged demolition plan. An excavator with a hoe-ram attachment will demolish the dam, with an excavator and track loader used to relocate sediment and remove rubble. During the demolition process, river flow will be, at various times and sometimes in combination, diverted through the powerhouse, passed through a notch in the dam, and/or passed over the partially demolished crest. The partial removal plan can be implemented at an estimated cost of $260,000. Work will be completed by late March to early April to avoid the primary fishing and boating periods. At each stage of the demolition plan, sediment will be mobilized and transported to the river below the dam. River flow will spread out and slow down after passing through the dam. As this occurs, sediment will be deposited in the riverbed just below the dam and will be transported downstream with the generated flows. A high flow event of approximately 850 cfs or greater is required in order to flush this sediment downstream. Therefore, it will be necessary for upstream dam operators (Duke Power Hydro Central) to release these flows at each stage of demolition to accomplish this flushing of sediment below the dam. The river will flow through a relatively narrow channel within the existing sediment deposits during the dam demolition process and shortly thereafter. It is anticipated that within a year or less after completion of dam demolition, the river will return to its pre-dam bank-to-bank width and depth. This action would provide the benefit of resource enhancement and would at least partially mitigate for the various impacts of the Dillsboro Dam and other Duke Power Tuckasegee River hydro projects. Although the Project currently has little effect on water quality parameters and is in compliance with the state standards, certain parameters such as dissolved oxygen and temperature may slightly improve due to the reduction in impounded waters. Total suspended solids (TSS) would, during the relatively short-term demolition period, increase. Furthermore, with this alternative the Project will change from a sediment sink to a partial downstream sediment source. A large portion of the existing accumulations of sediment would now be • transported downstream in pulses based on the generated flows. Attachment F. Dillsboro Dam Removal EA Executive Summary.doc Rev: Draft 10/15/2003 6 Attachment F -Dillsboro Dam Removal EA Executive Summary • • Partial removal would also at least enhance the current aquatic resource distribution and species richness of the upstream areas through limited upstream and downstream passage. The partial removal of the dam would allow partial access to aquatic resources to an additional 9.5 miles of river. The existing downstream endangered mussel population will be adversely affected by increased sediment accumulation, subsequent changes in preferred substrate, and changes in flow dynamics and will require mitigative measures (i.e., removal and relocation). The adoption of this alternative may result in the exposure of archaeological resources due to the lowering of the floodpool elevation and the subsequent exposure of littoral areas. The partial removal of the dam could also provide almost a mile of additional riverine angling opportunity for native fish and the delayed harvest managed trout fishery. The already limited reservoir boating will be diminished; however, there would be increased opportunity for whitewater boating and canoeing without the need of a portage around the dam. There will be no changes in the existing land use although additional shoreline exposure would benefit the riparian corridor through the formation of new wetlands and terrestrial buffers. Aesthetic values of the Project would remain (i.e., water falling over the dam), however, it will be diminished by the view of the partially removed dam structure remaining in the river. It is assumed that socioeconomic values could increase slightly in association with the increased opportunity for whitewater boating and riverine angling. Alternative C (Full Removal) is associated with the full removal to grade of the existing Dillsboro Dam. With this alternative, the Project would cease to operate and no longer generate electricity for Duke Power. For this option, the dam is to be removed to the original riverbed over its full width. The river will be returned to its assumed pre-dam bank-to-bank width and depth. Removal will be accomplished by use of hydraulic equipment to remove the dam in accordance with a staged demolition plan. An excavator with a hoe-ram attachment will demolish the dam, with an excavator and track loader used to relocate sediment, and if necessary, remove rubble. During the demolition process, river flow will be, at various times and sometimes in combination, diverted through the powerhouse, passed through a notch in the dam, and/or passed over the partially demolished crest. Attachment F. Dillsboro Dam Removal EA Executive Summary.doc Rev: Draft 10/15/2003 7 Attachment F -Dillsboro Dam Removal EA Executive Summary The dam demolition project should commence in late January in order to perform the work during • the lower flow period. Work will be completed by late March to early April to avoid the primary fishing and boating periods. The full removal plan can be implemented at an estimated cost of $290,000. At each stage of the demolition plan, sediment will be mobilized and transported to the river below the dam. River flow will spread out and slow down after passing through the dam. As this occurs, sediment will be deposited in the riverbed just below the dam and will be transported downstream with the generated flows. A high flow event of approximately 850 cfs or greater is required in order to flush this sediment downstream. Therefore, it will be necessary for upstream dam operators (Duke Power Hydro Central) to release these flows at each stage of demolition to accomplish this flushing of sediment below the dam. This action would provide the full benefit of resource enhancement and would mitigate for the various impacts of the Dillsboro Dam and other Duke Power hydro projects. Although the Project currently has little effect on water quality parameters and is in compliance with the state standards, certain parameters such as dissolved oxygen and temperature may slightly improve due to the reduction in impounded waters. Total suspended solids (TSS) would, during the relatively short-term demolition period, increase. Furthermore, with this alternative the Project will change from a sediment sink to a downstream sediment source. Through staged or phased removal over a specific period, all or most of the existing accumulations of sediment would be transported downstream. Full removal would enhance the current aquatic resource distribution and species richness of the upstream areas through complete upstream and downstream passage. The removal of the dam would allow full access to aquatic resources of 9.5 miles of additional river. The existing downstream endangered mussel population will be adversely affected by increased sediment accumulation, subsequent changes in preferred substrate, and changes in flow dynamics and will require mitigative measures (i.e., removal and relocation). The adoption of this alternative may result in the exposure of archaeological resources due to the lowering of the floodpool elevation and the subsequent exposure of littoral areas. The removal of the dam could also provide almost a mile of additional riverine angling opportunity for native fish is and the delayed harvest managed trout fishery. The riverine stretch will now be unsuitable for Attachment F. Dillsboro Dam Removal EA Executive Summary.doc Rev: Draft 10/15/2003 8 Attachment F -Dillsboro Dam Removal EA Executive Summary reservoir boating, however, there would be increased opportunity for whitewater boating and • canoeing without the need of a portage around the dam. Natural aesthetic values of the Project would be enhanced by the view of the free flowing stretch of river. It is assumed that socioeconomic values would increase slightly in association with the increased opportunity for whitewater boating and riverine angling. There will be no changes in the existing land use although additional shoreline exposure would benefit the riparian corridor through the formation of new wetlands and terrestrial buffers. Alternatives Associated with the Dillsboro Powerhouse Alternative A (No Action) has been established as a benchmark against which the proposed action of the Dillsboro Powerhouse may be compared and evaluated from a current baseline. This alternative is associated with No Action or continued operation of the Project. This alternative would essentially keep the Project and the associated powerhouse in the present state of operation. This project generates a relatively small amount of electricity (918,000 kWh per year) and will continue to do so under this alternative. The powerhouse, as described below, will remain intact and in place and will continue generating energy through use of the Dillsboro Reservoir. With this No Action alternative, there would be no new major construction activities and the current operations and maintenance would continue through the existing and any future license articles and conditions. Based on an environmental site assessment of the powerhouse in 2002, no major potential sources of environmental contamination were identified. There are minor concerns associated with lead- based paint on the structure and asbestos on the generator/turbine wiring. Although a minor concern, the level of potential risk was deemed low with no action recommended during continued operation. Based on cultural resource surveys conducted by Duke Power, the Project lacks sufficient integrity to meet National Register of Historic Places (NRHP) criteria. Although the original powerhouse • and dam were built in 1913, both were extensively modified in 1958. Due to extent of these Attachment F. Dillsboro Dam Removal EA Executive Summary.doc Rev: Draft 10/15/2003 9 Attachment F -Dillsboro Dam Removal EA Executive Summary alterations, Duke believes that neither the powerhouse nor dam meets NRHP requirements. • However, the NCSHPO is currently reviewing the status of the Dillsboro Powerhouse in relation to the NRHP. Preliminary information from the NCSHPO suggests that the powerhouse may be important in the context of the history of electric power development in the Nantahala area. With Alternative B (Closure), the powerhouse is to be left in place with the most likely option of very limited public access. The entrance of the structure would be locked and a kiosk would be established that describes the history of the Project and powerhouse and its past importance to the Nantahala area. With this alternative, the Project would cease to operate and no longer generate electricity for Duke Power. Potentially hazardous items (e.g., lead paint, asbestos) and oil and lubricants are to be removed prior to closure. NCSHPO suggests that the powerhouse may be important in the context of the history of electric power development in the Nantahala area. Duke will conduct further discussions with the NCSHPO to resolve this issue. The estimated 500 little brown bats would still use the powerhouse as roosting habitat. No other • principal environmental effects are associated with closure of the powerhouse. The powerhouse closure plan can be implemented at an estimated cost of $3,000. With Alternative C (Demolition), the powerhouse is to be completely demolished down to the foundation. With this alternative, the Project would cease to operate and no longer generate electricity for Duke Power. Potentially hazardous items (e.g., lead paint, asbestos) and oil and lubricants are to be removed prior to commencing the demolition work. Equipment is assumed to have no salvage value to the Owner. The superstructure is to be demolished and removed from site. The concrete substructure walls and floors are to be demolished and removed from site. Concrete that has been placed against the rock foundation will be left in place. At completion of demolition, the pits and holes will be filled to a degree that there will be no safety hazards left on site. It is assumed that rubble from the dam removal and sediment will be used as fill material. The final surface will be armored and/or vegetated to remain stable during high water events. The powerhouse demolition plan can be implemented at an estimated cost of $200,000. 1? Attachment F. Dillsboro Dam Removal EA Executive Summary.doc Rev: Draft 10/15/2003 10 Attachment F -Dillsboro Dam Removal EA Executive Summary ?J • • The NCSHPO is currently reviewing the status of the Dillsboro Powerhouse in relation to the NRHP. NCSHPO suggests that the powerhouse may be important in the context of the history of electric power development in the Nantahala area. Duke will conduct further discussions with the NCSHPO to resolve this issue. With the demolition of the powerhouse, the estimated 500 little brown bats would lose there roosting habitat. A mitigation plan will be developed that incorporates measures to benefit the bat population. No other principal environmental effects are associated with removal of the powerhouse. Decision Analysis A risk analysis was used in association with the Dillsboro Dam to objectively quantify and analyze the factors and opinions that influence the importance, consequences, degree of uncertainty and the cost/benefit outcome of the project. In association with the cost analysis, the normalization of all the criteria including both the total cost factors and intrinsic values showed that the partial removal alternative is the most costly (value of 0.747) followed by the full dam removal alternative (value of 0.585). In association with the benefit analysis, the normalization of all the criteria including both the total benefit factors and intrinsic values (e.g. restored fisheries, additional whitewater boating opportunities), showed that the full dam removal alternative is the most beneficial alternative (value of 0.676) followed by the partial dam removal alternative (value of 0.559). Thus in review of the project decision results below, the Full Dam Removal alternative has the best overall benefit/cost ratio (i.e., highest ratio) and is the Preferred Alternative for future action. The overall Preferred Alternative package would be to pursue the Full Dam Removal. Due to the cost factors associated with the demolition of the powerhouse, the Closure of the Powerhouse is the most cost effective alternative at this time. COST BENEFIT BENEFIT/COST Attachment F. Dillsboro Dam Removal EA Executive Summary.doc Rev: Draft 10/15/2003 11 Attachment F -Dillsboro Dam Removal EA Executive Summary • • NO ACTION 0.491 0.433 0.882 PARTIAL DAM REMOVAL 0.747 0.559 0.748 FULL DAM REMOVAL 0.585 0.676 1.155 Attachment F. Dillsboro Dam Removal EA Executive Summary.doc Rev: Draft 10/15/2003 12 V nil O Wo *a .00 V FBI ?I FBI 4-4 O rA Qj W bA a? A it H U V V N I? 000 N N N M 00 V) ? 00 00 DD 00 M oc 00 N N 00 O N 00 p 0 0 N C\ 00 O N- 00 M0? l? 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C-i W N V] V] G. N Q C7 .7. ?? U N , D G7 .--i Q ?to F" a -d o ? ?o o c a ? c ? to A a v o on ?; In, ? _? c n o n ' a 04 QC4 Q Q? Qe' [x.01 ? J.d U_ r > '--? . . ............... y? w a; ?o ? ? 0 3 0 73 r 3 o o as a? 3 3 cl 00 z uo ? U w N `? ? u o a3 S 4.4 c? :° bA U U •? 3 o o U o o U >> U w `? z z? 3 0 0? un M O O N M N _o a? as M U O z c? O vi U U O z v7 Q.. N U U H U z U c? v ? kr) nl ? N N N op ? O y.l U V ? G? 0.0 O 42 n a -o r..? (U W bn 4-4 O O kr) , D ? 14 ? o ° CQ ai U p zz a¢ 03 v p A 4-4 O j"i . ° U ICI ? w Lir ? i.i ?..i a cC U a y, FPM W ? F 1 ?, 7 v/ O 03 U ° ,x CC3 w ? ? W ? C y ? w ? O M O O N M N O U a; U O U ' U '~ ? z ?a O U "? cn cz O z i >C ? U ?i U • ? C3" ° ra U ? z a? ? I ? N ? U a? Q Attachment H - Definitions of Terms and Phrases and Listing of Abbreviations Actual Reservoir Level. The reservoir level (in ft above Mean Sea Level (msl) or feet • relative to the full pond contour with 100.0 ft corresponding to full pond) as measured by a calibrated reservoir stage level gage on any given day and time. AR. American Rivers. AW. American Whitewater Affiliation. Barrier-free Dock. A dock constructed so that people with mobility handicaps can use the dock. Bryson Hydro Project. A hydroelectric project located on the Oconoluftee River and its tributaries in Swain County, NC consisting of a dam (Bryson Dam or Lake Ela Dam), a reservoir (Lake Ela), a powerhouse (Bryson Hydro Station) and associated lands and waters. The Bryson Hydro Project is operated pursuant to a license issued by the FERC (FERC Project No. 2601). Candidate Conservation Agreement (CCA). A voluntary conservation agreement between the USFWS and one or more private or public property owners (including Federal agencies) that provide conservation benefits to unlisted species but do not provide the property owners or any cooperators to the CCA with regulatory assurances or take authorization should the species become listed. • CCC. Carolina Canoe Club. Dillsboro Dam Removal Protect. A project to remove the Dillsboro Dam and close / dispose of the Powerhouse which requires FERC approval. Dillsboro Hydro Project. A hydroelectric project located on the Tuckasegee River in Jackson County, NC consisting of a dam (Dillsboro Dam), a pond (Dillsboro Pond), a powerhouse (Dillsboro Hydro Station) and associated lands and waters. The Dillsboro Hydro Project is operated pursuant to a license issued by the FERC (FERC Project No. 2602). DPNA. Duke Power, a Division of Duke Energy Corporation, Nantahala Area. DPNA Hydro Projects. The hydro projects and associated lands operated by Duke Power and located on the Nantahala River (Nantahala Hydro Project), Tuckasegee River (East Fork, West Fork and Dillsboro Hydro Projects), Little Tennessee River (Franklin Hydro Project), Oconoluftee River (Bryson Hydro Project) and Hiwassee River (Mission Hydro Project). East Fork (EF) Hydro Project. A hydroelectric project located on the East Fork of the Tuckasegee River and its tributaries in Jackson County, NC consisting mainly of four dams (Wolf Creek, Tanasee Creek, Bear Creek and Cedar Cliff), four reservoirs (Wolf • Creek, Tanasee Creek, Bear Creek and Cedar Cliff Lakes), three powerhouses (Tennessee Attachment H. Definitions.doc 1 Rev.: DRAFT 10/15/03 Attachment H - Definitions of Terms and Phrases and Listing of Abbreviations (or Tanasee) Creek, Bear Creek, and Cedar Cliff Hydro Stations), and associated lands • and waters. The East Fork Hydro Project is operated pursuant to a license issued by the FERC (FERC Project No. 2698). EBCI. Eastern Band of Cherokee Indians. Emergency Periods. Periods of time during which certain license conditions may be varied from as a result of a condition or incident that is identified in "Attachment C - Hydro Project Maintenance and Emergency Protocol (HPMEP)" or is not specifically identified in the HPMEP but is similar enough in nature to those conditions and incidents specifically described in the HPMEP to warrant variance from license conditions. FERC. Federal Energy Regulatory Commission. Note that in the proposed FERC License Articles, the FERC is referred to as the "Commission". FLG. The Friends of Lake Glenville, Inc. Franklin Hydro Project. A hydroelectric project located on the Little Tennessee River and its tributaries in Macon County, NC consisting of a dam (Franklin Dam or Lake Emory Dam), a reservoir (Lake Emory), a powerhouse (Franklin Hydro Station) and associated lands and waters. The Franklin Hydro Project is operated pursuant to a license issued by the FERC (FERC Project No. 2603). • GCDC. Glenville Community Development Club. Historic Properties Management Plan (HPMP). A plan for managing significant archaeological resources or sites that are eligible for listing in the National Register of Historic Places. The plan defines how impacts to historic properties will be addressed during the term of the project license. Hydro Project Maintenance and Emergency Protocol (HPMEP). A protocol included in the Settlement Agreement as Attachment C, which defines the most likely emergency, equipment failure and maintenance situations, identifies the potentially affected license conditions, and outlines the general approach the Licensee will take to mitigate the impacts to license conditions and to communicate with the resource agencies and affected parties. Jurisdictional Body. Any governmental body, including but not limited to the Federal Energy Regulatory Commission (FERC) or the North Carolina Department of Environment and Natural Resources (NCDENR), which has the authority to prevent implementation of, or to require that specific steps be followed prior to implementing any part of the Settlement Agreement. A governmental body does not need to be a Party to be a Jurisdictional Body. A governmental body shall be considered to be a Jurisdictional Body only when it takes actions that prevent implementation of, or to require that specific steps be followed prior to implementing any part of, the Settlement Agreement. A • Attachment H. Definitions.doc 2 Rev.: DRAFT 10/15/03 Attachment H - Definitions of Terms and Phrases and Listing of Abbreviations governmental body may be a Jurisdictional Body for certain actions and not for other • actions. Lake Use Restrictions. A document that defines the different habitat types present on DPNA property around a hydro project reservoir and delineates the lake use permitting restrictions that are needed to protect the sensitive habitats. (Attachment D - Shoreline Management Program). Licensee. The entity holding a hydro project's operating license from the FERC at any given time. Presently, DPNA is the Licensee for all of the DPNA Hydro Projects. Low Inflow Periods. Periods when there is not enough water flowing into the hydro project to meet the normal needs for power generation, recreation flows, minimum flows, any on-reservoir water withdrawals and reservoir stage level maintenance. (Attachment B - Low Inflow Protocol). Low Inflow Protocol (LIP). A protocol included in the Settlement Agreement as Attachment B, which provides trigger points and procedures for how the project will be operated by the Licensee during periods of low inflow in a manner that shares the burden of reduced water availability among the various users of the reservoir's water supply. Main Stem of the River. The Nantahala or Tuckasegee River between the outflow channel (i.e. the tailrace) from the applicable DPNA hydro stations (i.e. the Nantahala • Hydro Station on the Nantahala River and the Cedar Cliff and Tuckasegee Hydro Stations on the Tuckasegee River) and the headwaters of TVA's Fontana Lake. Mission Hydro Project. A hydroelectric project located on the Hiwassee River and its tributaries in Clay County, NC consisting of a dam (Mission Dam), a reservoir (Mission Reservoir or Mission Pond), a powerhouse (Mission Hydro Station) and associated lands and waters. The Mission Hydro Project is operated pursuant to a license issued by the FERC (FERC Project No. 2619). Nantahala Area Telephone Information Svstem for the Nantahala. West Fork and East Fork Proiects. A telephone information system (Call 1-866-332-LAKE or 1-866. 332-5253) that provides information about DPNA reservoir levels, generation flows for recreation from the West Fork, East Fork, and Nantahala Hydro Projects, river flow schedules for the West Fork and East Fork Hydro Projects and messages of special interest to recreationists using these areas. Nantahala Cooperative Stakeholder Team (NCST). A team of 26 stakeholder entities (with a primary member from each entity and an alternate member from some entities) that jointly developed a set of consensus recommendations to protect mitigate and enhance the Nantahala River with respect to DPNA's relicensing process for the Nantahala Hydro Project. The foundation of the process was to develop an understanding of the operations of the hydro project and the ability to work together cooperatively as a is team to educate one another about the respective needs and concerns that each stakeholder brought to the relicensing process. The products of the Stakeholder Process Attachment H. Definitions.doc 3 Rev.: DRAFT 10/15/03 Attachment H - Definitions of Terms and Phrases and Listing of Abbreviations were the Consensus Agreement (Attachment A) and, subsequently, the Settlement • Agreement for the Nantahala Hydro Project. Nantahala Hydro Proiect. A hydroelectric project located on the Nantahala River and its tributaries in Macon and Clay Counties, NC consisting mainly of four dams (Nantahala, Whiteoak Diversion, Diamond Valley Diversion and Dicks Diversion dams), one reservoir (Nantahala Lake), three ponds (Whiteoak, Diamond Valley and Dicks ponds), one powerhouse (Nantahala Hydro Station), and associated lands and waters. The Nantahala Hydro Project is operated pursuant to a license issued by the FERC (FERC Project No. 2692). Nantahala River Bypassed Reach. The 9.2-mi section of the Nantahala River between the Nantahala Dam (located near River Mile 23.0) and its confluence with the outflow channel (i.e. tailrace) from the Nantahala Powerhouse (located near River Mile 13.8). NCDENR. North Carolina Department of Environment and Natural Resources. NCDPR. The North Carolina Department of Environment and Natural Resources' Division of Parks & Recreation. NCDWO. The North Carolina Department of Environment and Natural Resources' Division of Water Quality. NCDWR. The North Carolina Department of Environment and Natural Resources' Division of Water Resources. NCSHPO. North Carolina State Historic Preservation Officer. NCWF. North Carolina Wildlife Federation. NCWRC. North Carolina Wildlife Resources Commission. Near-Term Reservoir Level Proiections. On any given day, it is the reservoir levels (in ft above Mean Sea Level (msl) or feet relative to the full pond contour with 100.0 ft corresponding to full pond) that are projected by DPNA for at least the succeeding 30 days. Note that this projected reservoir level requires making many assumptions and actual reservoir levels may or may not match the projections. New License. A license issued by the FERC at the expiration of the current (i.e. existing) license where the existing Licensee of the hydro project has made a timely application to the FERC and after the conclusion of the FERC Relicensing Process. Note that the FERC also refers to the New License for a minor project (i.e. a hydro project with a generating capacity of less than or equal to 1.5 Mw) as a "subsequent license". NGA. Nantahala Gorge Association, Inc. • Attachment H. Defmitions.doc 4 Rev.: DRAFT 10/15/03 Attachment H - Definitions of Terms and Phrases and Listing of Abbreviations • • • NOC. Nantahala Outdoor Center, Inc. Normal Full Pond Elevation. Also referred to simply as "full pond", this is the level of a reservoir that corresponds to the point at which water would first begin to spill from the reservoir's dam(s) if DPNA took no action. This level corresponds to the lowest point along the top of the spillway (including any fuse plugs or flashboards) for reservoirs without flood gates and to the lowest point along the top of the flood gates for reservoirs that have them. The Normal Full Pond Elevations for most DPNA Hydro Project reservoirs are identified on the top of the tables showing the Normal Operating Ranges within the applicable Settlement Agreement. To avoid confusion among the many reservoirs DPNA operates, it has adopted the practice of referring to the Normal Full Pond Elevation for all of its reservoirs as equal to 100.0 ft relative. Normal Generation Schedule to Support Recreation. The schedule identified in the applicable Settlement Agreement that provides for recreation flow releases from the operation of a DPNA Hydro Powerhouse at equal to or greater than the flow at which the project produces power most efficiently. Normal Maximum Elevation. The level of a reservoir (measured in ft above Mean Sea Level (msl) or feet relative to the full pond contour with 100.0 ft corresponding to full pond) that defines the top of the reservoir's Normal Operating Range for a given day of the year. If inflows and outflows to the reservoir are kept within some reasonable tolerance of the average or expected amounts, hydro project equipment is operating properly and no protocols for abnormal conditions have been implemented, reservoir level excursions above the Normal Maximum Elevation should not occur. Note however that during droughts, special drought storage considerations may apply. Normal Minimum Elevation. The level of a reservoir (measured in ft above Mean Sea Level (msl) or feet relative to the full pond contour with 100.0 ft corresponding to full pond) that defines the bottom of the reservoir's Normal Operating Range for a given day of the year. If inflows and outflows to the reservoir are kept within some reasonable tolerance of the average or expected amounts, hydro project equipment is operating properly and no protocols for abnormal conditions have been implemented, reservoir level excursions below the Normal Minimum Elevation should not occur. Normal Operating Ranee. The band of reservoir levels within which the Licensee normally attempts to maintain a given reservoir that it operates on a given day. Each reservoir has its own specific Normal Operating Range, and that range is bounded by a Normal Maximum Elevation and a Normal Minimum Elevation. If inflows and outflows to the reservoir are kept within some reasonable tolerance of the average or expected amounts, hydro project equipment is operating properly and no protocols for abnormal conditions have been implemented, reservoir level excursions outside of the Normal Operating Range should not occur. Note however that during droughts, special drought storage considerations may apply. Attachment H. Definitions.doc Rev.: DRAFT 10/15/03 Attachment H - Definitions of Terms and Phrases and Listing of Abbreviations Normal Target Elevation. The level of a reservoir (measured in ft above Mean Sea Level (msl) or feet relative to the full pond contour with 100.0 ft corresponding to full pond) that the Licensee will endeavor in good faith to achieve, unless operating in the Low Inflow or Hydro Project Maintenance & Emergency Protocol. The Normal Target Elevation will fall within the Normal Operating Range, but it may not always be the average of the Normal Minimum and Normal Maximum Elevations. NRC. Nantahala Racing Club. NRCS. The Department of Interior's Natural Resource Conservation Service. Proposed FERC License Article. Paragraphs within the applicable Settlement Agreement that the Parties developed to identify to the FERC the recommended wording of articles for the New License. Recent Reservoir Level History. On any given day, it is the reservoir levels (measured in ft above Mean Sea Level (msl) or feet relative to the full pond contour with 100.0 ft corresponding to full pond) for at least the previous seven days. Recreational Flows. Flows from hydro station generation or from Tainter gates at times and in quantities that facilitate water-based recreational pursuits. Shoreline Classification Maps. Maps developed by the Licensee that classify the shoreline of its reservoirs according to the existing uses and that identify areas that need special consideration when permitting lake uses. Shoreline Management Guidelines. A document that contains conditions and limitations required for certain types of access to DPNA's shoreline properties, and also guidelines designed to meet DPNA's regulatory requirements, protect DPNA's hydro generation interests, protect the scenic and environmental value of DPNA's shoreline property, provide recreational benefits to the general public, and provide a guide to adjacent property owners on permitted uses of DPNA properties. (Also see Attachment D - Shoreline Management Program) Shoreline Management Program. The combination of Shoreline Classification Maps, Lake Use Restrictions, Vegetation Management Requirements and the Shoreline Management Guidelines that DPNA uses to carry-out its license requirements relative to managing uses by others of its FERC-licensed reservoirs. Special Messages. Messages provided to river and/or reservoir users by telephone and/or website that would inform them of potentially dangerous conditions, conditions or events that might alter their expected experience on the river or reservoir, or conditions or events of potential interest to them. Term of the New License. The actual duration of the New License and any annual • licenses issued thereafter until the FERC issues and the Licensee accepts another license. Attachment H. Definitions.doc 6 Rev.: DRAFT 10115103 Attachment H - Definitions of Terms and Phrases and Listing of Abbreviations TGA. Tuckasegee Gorge Association, Inc. • THPO. Tribal Historic Preservation Officer. TU. North Carolina Council of Trout Unlimited. Tuckasegee Cooperative Stakeholder Team (TCST). A team of 33 stakeholder entities (with a primary member from each entity and an alternate from some entities) that jointly developed a set of consensus recommendations to protect, mitigate and enhance the Tuckasegee River with respect to DPNA's relicensing process for the East Fork, West Fork and Dillsboro Hydro Projects. The foundation of the process was to develop an understanding of the operations of the hydro projects and the ability to work together cooperatively as a team to educate one another about the respective needs and concerns that each stakeholder brought to the relicensing process. The products of the Stakeholder Process were the Consensus Agreement (Attachment A) and the Settlement Agreement for the East Fork, West Fork and Dillsboro Hydro Projects. Tuckasegee River Hydro Protects. The three hydro projects and associated lands and waters operated by Duke Power and located on the West Fork, East Fork and Main Stem of the Tuckasegee River (West Fork, East Fork, and Dillsboro Hydro Projects). TVA. Tennessee Valley Authority. USACOE. United States Army Corps of Engineers. USFS. The Department of Agriculture's United States Forest Service. USFWS. The Department of Interior's United States Fish & Wildlife Service. USGS. The Department of Interior's United States Geological Survey. Vegetation Management Requirements. These are the requirements necessary to protect riparian wildlife corridors on shoreline property owned by DPNA that is also within the FERC project boundaries while also providing consideration to the impacts of these requirements on private landowners with property adjoining the project boundaries. West Fork (Glenville) Bypassed Reach. The approximately 6.7-mile section of the West Fork of the Tuckasegee River between the Glenville Dam (located near River Mile 9.8) and its confluence with Tuckasegee Pond (located near River Mile 3.1). West Fork (WF) Hydro Proiect. A hydroelectric project located on the West Fork of the Tuckasegee River in Jackson County, NC consisting mainly of two dams (Glenville and Tuckasegee), one reservoir (Lake Glenville), one pond (Tuckasegee), two powerhouses (Thorpe and Tuckasegee Hydro Stations), and associated lands and waters. The West Fork Hydro Project is operated pursuant to a license issued by the FERC (FERC Project No. 2686). Attachment H. Definitions.doc 7 Rev.: DRAFT 10115103 Attachment H - Definitions of Terms and Phrases and Listing of Abbreviations is Wolf Creek Bypassed Reach. The approximately two mile section of Wolf Creek between the Wolf Dam and its confluence with the outflow channel (i.e. tailrace) from the Tennessee Creek (Tanassee) Powerhouse which is also the confluence of Wolf Creek with the East Fork of the Tuckasegee River. • Attachment H. Definitions.doc 8 Rev.: DRAFT 10/15/03 Attachment I - Riparian Habitat Enhancement Fund Background. The Riparian Habitat Enhancement Fund addresses any unavoidable ongoing and • cumulative impacts of the operation of the DPNA Hydro Projects on riparian habitats. The fund provides for conservation activities to offset any hydro project-related impacts to land and water resources in the Hiwassee, Nantahala, Oconaluftee, Tuckasegee, and Little Tennessee River valleys on lands in the vicinity of the DPNA Hydro Projects. A variety of conservation interests were identified during discussions with the Nantahala Cooperative Stakeholder Team (NCST) and the Tuckasegee Cooperative Stakeholder Team (TCST); many of which related to riparian habitat protection and restoration. The NCST and TCST Settlement Agreements both include a Paragraph 6.8 that establishes the following specific requirements relative to this Riparian Habitat Enhancement Fund: "6.8 DPNA agrees that within 1 to 15 years following its acceptance of the New Licenses for the DPNA Hydro Projects, DPNA will provide a total of $200,000 for the purpose of supporting DPNA-selected riparian habitat enhancement projects on lands that drain to any of the DPNA Hydro Projects or the river sections between the DPNA Hydro Projects and reservoirs belonging to the Tennessee Valley Authority (TVA) where such projects (1) protect or enhance fish or wildlife habitat directly or (2) educate landowners or school children about the importance of healthy riparian areas for fish and wildlife habitat. DPNA will utilize the process outlined in Attachment I (i.e. this process document) in selecting the projects to be funded." Other parts of the settlement agreements may also address project-related impacts for the DPNA Hydro Projects through similar actions in the riparian areas. • Agency and Organization Goals. The specific goals of natural resource agencies and organizations for this area include: • Restore and protect riparian areas, aquatic habitats, and improve water quality • Recover imperiled species • Restore extirpated plant and animal populations • Restore and protect riparian corridors and habitats • Provide outdoor recreational opportunities • Control invasive exotic species • Educate decision makers and citizens about the importance of the unique river resources. Conservation Activities. Ongoing land and water management activities in the DPNA service territory over the last 10 years provide an indication of continuing conservation needs. These activities, some of which may be related to any ongoing impacts of the DPNA Hydro Projects, include: • Riparian habitat restoration • Floodplain protection • Environmental education • Exotic species control (e.g., terrestrial and aquatic plants) • • Restoration effectiveness monitoring • Land/forest management Attachment I. Riparian Habitat Enhancement Fund.doc Rev.: Draft 10115103 Attachment I - Riparian Habitat Enhancement Fund • Land protection/conservation • • Wildlife habitat enhancement Amount of the Fund. The amount of the fund will be equivalent to $40,000 for each of the five counties (Cherokee, Clay, Jackson, Macon and Swain) (i.e. $200,000 total). Funding will be provided by DPNA within the first 15 years of the New Licenses issued by the FERC for the DPNA Hydro Projects, and may be provided in multi-year increments or under a variable but pre-agreed upon disbursement regime. (Note: The dollar amounts expressed herein are in 2004 dollars and are subject to the monetary adjustment method as noted in the TCST or NCST Settlement Agreement). Once the $200,000 of DPNA funding has been awarded, the fund and the Advisory Board identified in this document will be dissolved. Geographic Scope. The geographic scope of this proposal includes the Hiwassee, Nantahala, Oconaluftee, Tuckasegee, and Little Tennessee River valleys on lands that drain to any of the DPNA Hydro Projects or the river sections between the DPNA Hydro Projects and reservoirs belonging to the Tennessee Valley Authority (TVA). The fund will emphasize activities that address any project-related impacts, but recognize the potential benefits of protection and restoration of riparian areas that may be impaired by other sources (e.g., invasive exotic species). Administrative Structure. It is proposed that the fund be locally administered by an Advisory Board composed of persons most familiar with conservation priorities of the area. Once an Advisory Board is established, it will meet to develop a brief operating agreement to address at least the following: • Membership • Decision-making • Reporting • Solicitation of proposals • Procedures for prioritizing grant requests, including application rating systems • Method and schedule for presenting its prioritized funding requests to DPNA. The signatory Parties to the TCST and NCST settlement agreements will be given the opportunity to comment on the Advisory Board's proposed draft operating agreement and the Advisory Board will endeavor in good faith to accommodate any suggested changes before finalizing the operating agreement. Advisory Board Members. The following agencies and organizations will provide one representative each to the Advisory Board. Each representative should be very familiar with riparian ecology in the geographic area. ? North Carolina Wildlife Resources Commission ? North Carolina Division of Water Resources ? United States Fish & Wildlife Service ? United States Forest Service ? Land Trust for the Little Tennessee ? Little Tennessee Nonpoint Source Team (see basin plan) Attachment I. Riparian Habitat Enhancement Fund.doc 2 Rev.: Draft 10/15/03 Attachment I - Riparian Habitat Enhancement Fund ? Natural Resource Conservation Service • ? Each County's Soil and Water Conservation District ? Trout Unlimited Schedule for Establishing the Administrative Structure. The representative from the United States Fish & Wildlife Service will organize and hold the initial Advisory Board meeting within four months following DPNA's acceptance of the New Licenses for the DPNA Hydro Projects. Within one year following DPNA's acceptance of the New Licenses for the DPNA Hydro Projects, the Advisory Board will complete all of the following: o Draft its proposed operating agreement. o Solicit and incorporate comments on the draft operating agreement from all the Parties to the NCST and TCST Settlement Agreements. o Finalize its operating agreement and send copies of it to all the Parties to the NCST and TCST Settlement Agreements. o Develop a simple application for grant funding requests. o Begin soliciting for grant funding proposals. Process for Review of Proposals A key feature of the fund is that it is established to address the unforeseen or changing needs and priorities related to riparian habitat protection and restoration needs in the project area. The fund supports activities that: ? O 1 Protect or enhance fish or wildlife habitat directly, or ? (2) Educate landowners or school children about the importance of healthy riparian areas for fish and wildlife habitat. Grant requests should address the focus areas listed above. Additional consideration will be given to grant requests that: • Have a long term impact • Provide direct benefits to riparian resources • Show measurable results • Demonstrate co-funding (leveraging) from other funds, volunteer, or in-kind resources, thus indicating broad support for the proposed project • Implement creative approaches • Have a demonstration element or adapt proven models • Coordinate and cooperate with existing efforts (i.e. are part of a larger scheme of riparian protection and restoration, or connect existing protected riparian habitat) • Increase awareness of how varied activities affect the overall river basin The Advisory Board will determine specific weighting of these criteria. Further, the Advisory Board may determine additional factors and/or weightings on a geographic basis. • The Advisory Board will coordinate with DPNA staff to ensure that: Attachment I. Riparian Habitat Enhancement Fund.doc Rev.: Draft 10/15/03 Attachment I - Riparian Habitat Enhancement Fund • ? The Advisory Board's prioritized list of projects is clearly communicated to DPNA staff at some mutually agreed-upon interval. ? That each calendar year, funding expectations for the next calendar year are mutually agreed-upon and are coordinated with DPNA's budget planning cycle. The Advisory Board recognizes that DPNA staff will make the final selections of initiatives that DPNA will fund from the Advisory Board's prioritized list. DPNA staff will however place a high value on the Advisory Board's prioritization process and will normally distribute funds in accordance with the Advisory Board's prioritized list. If DPNA must deviate from the Advisory Board's prioritized list, then DPNA will explain any reasons for such deviations. All funding distributions will be directly from DPNA to the entity that is implementing the riparian habitat enhancement project. For additional information contact: Mark A. Cantrell, US Fish & Wildlife Service 828/258- 3939, ext 227 • • Attachment I. Riparian Habitat Enhancement Fund.doc 4 Rev.: Draft 10115103 Location Conservation Map is • • rV4; ;z f i v, f1? ' r r e { 4 ,?QU ?[f10't7 i r f t a . 1 i ?, w!. ?9V 7 " l i t r ?' ?' °^') ti corAiv KrIot -*Z i A . I w g " " 1 o l N 1NA t#}. 1 Y t t. L1 Legend t r National Forest System Lands 150 Acre Conservation Tract { wolf w r f Attachment J. Description of the Conservation Tract.ORIGINAL.pdf Rev.: 10-23-2003 Attachment K. Estimated DPNA Cost to Construct Tuckasegee Ricer Main Stem Boating Access Facilities • U is Site of Facility Estimated Cost (1) 1. Develop a public boat launch and gravel parking $160,000 area on DPNA property below the Cedar Cliff Powerhouse on the East Fork near Shook CoN e, including a companion take-out area approximately 0.5 mi downstream ol'the boat launch. 2. Develop a public boat launch and gravel parking --? $70,000 area at the Tuckasegee Powerhouse. 3. Develop a public boat launch and gravel parking $70,000 area at Jackson County's East Laport Park, provided suitable agreements can be reached with Jackson County. 4. Develop an upstream take-out and downstream put- $1501000 in for drift boat and canoe access at Cullowhee Dann, provided suitable agreements can be reached Nvith WCU. 5. Provide a public boat launch and gravel parking area $75,000 in the delayed trout harvest section of the Tuckase0ee River, provided suitable agreements can be reached with the property owners. 6. Provide a public boat launch and gravel parking area $150,000 1 in the Barkers Creek section of the Tuckasegee River, provided suitable agreements can be reached xvith the property owners. 7. Provide a public boat launch and gravel parking area $75,000 in the Whittier section of the Tuckasegce River, provided suitable agreements can be reached with the property owners. Total _ - ----- $7.50,000 Attachment K. Lst. Cost of "I uckaseeee Rix er Main Stem Boatin- Access FaciIities.ORIGINAI .doc 1 Rev.: 10/23/0') Attachment K. Estimated IONA Cost to Construct 'Fuckasebee River Main Stem Boating Access Facilities (1) Estimates to construct the access facilities are in 2004 dollars and do not include any land-related costs (e.g. cost to purchase, obtain an easement or lease the property). • • Attachment K. Est. Cost of Tuckasegee Rifler Main Stcm Boating Access Facilitles.ORMINAL.doc Rev.: 10/23/03