20150998 Ver 6_Approval Letter_20200320

March 20, 2020

DWR # 15-0998v6
New Hanover County
Duke Energy
ATTN: Mr. Steve Cahoon
410 South Wilmington Street
Raleigh, NC 27601

Subject: APPROVAL OF INDIVIDUAL 401 WATER QUALITY CERTIFICATION WITH
ADDITIONAL CONDITIONS
L.V. Sutton Energy Complex – Sutton Lake Dam Rearmament
and Vegetation Removal
USACE Action ID. No. SAW-2011-00858

Dear Mr. Cahoon:

Attached hereto is a copy of Certification No. WQC004207 issued to Mr. Steve Cahoon and
Duke Energy, dated November 19, 2019. Please note that you should get any other federal,
state or local permits before proceeding with the subject project, including those required
by (but not limited to) Sediment and Erosion Control, Non-Discharge, and Water Supply
Watershed regulations.

This approval and its conditions are final and binding unless contested. This Certification
can be contested as provided in General Statute 150B by filing a written petition for an
administrative hearing to the Office of Administrative Hearings (hereby known as OAH)
within sixty (60) calendar days.

A petition form may be obtained from the OAH at http://www.ncoah.com/ or by calling the
OAH Clerk’s Office at [phone] for information. A petition is considered filed when
the original and one (1) copy along with any applicable OAH filing fee is received in the
OAH during normal office hours (Monday through Friday between 8:00am and 5:00pm,
excluding official state holidays).

The petition may be faxed to the OAH at [phone], provided the original and one
copy of the petition along with any applicable OAH filing fee is received by the OAH within
five (5) business days following the faxed transmission.

Mailing address for the OAH:

If sending via US Postal Service: If sending via delivery service (UPS, FedEx, etc):
Office of Administrative Hearings
6714 Mail Service Center
Raleigh, NC 27699-6714
Office of Administrative Hearings
1711 New Hope Church Road
Raleigh, NC 27609-6285

One (1) copy of the petition must also be served to DEQ:

William F. Lane, General Counsel
Department of Environmental Quality
1601 Mail Service Center
Raleigh, NC 27699-1601

Unless such a petition is filed, this Certification shall be final and binding.

This certification completes the review of the Division under section 401 of the Clean
Water Act and 15A NCAC 02H .0500. Contact Paul Wojoski at 919-707-3631 or
[e-mail] if you have any questions or concerns.

Sincerely,

Paul Wojoski, Supervisor
401 & Buffer Permitting Branch

cc: Richard Harmon, Wood Environment & Infrastructure Solutions Inc. (via email)
Rachel Capito, USACE Wilmington Regulatory Field Office (via email)
Todd Bowers, EPA, (via email)
DWR 401 & Buffer Permitting Branch file

Filename: 150998v6LVSuttonDamRearmament(New_Hanover)_401_IC

NORTH CAROLINA 401 WATER QUALITY CERTIFICATION

CERTIFICATION #WQC004207 is issued in conformity with the requirements of Section
401, Public Laws 92-500 and 95-217 of the United States and subject to North Carolina’s
Regulations in 15 NCAC 02H .0500 to Mr. Steve Cahoon and Duke Energy, who have
authorization for the impacts listed below, as described within your application received by
the N.C. Division of Water Resources (Division) on February August 6, 2019 and subsequent
information on October 9, 2019, February 28, 2020, March 3, 2020 and by Public Notice
issued by the U. S. Army Corps of Engineers and received by the Division on September 27,
2019.

The State of North Carolina certifies that this activity will not violate the applicable
portions of Sections 301, 302, 303, 306, 307 of the Public Laws 92-500 and PL 95-217 if
conducted in accordance with the application, the supporting documentation, and
conditions hereinafter set forth.

This approval requires you to follow the conditions listed in the certification below.

Conditions of Certification:

1. The following impacts are hereby approved provided that all of the other specific and
general conditions of the Certification are met. No other impacts are approved,
including incidental impacts. [15A NCAC 02H .0506(b) and/or (c)]

Type of Impact

Amount Approved
(units)
Permanent
Amount Approved
(units)
Temporary
404/401 Wetlands
Wetland E (Fill) 2.51 (acres) 2.56 (acres)
Wetland E – Breach
1/Area of Slope
Movement (Fill)
0.05 (acres) 0.21 (acres)
Wetland E – Breach
3/Ditch in Wetland
(Fill)
0.37 (acres) 0.68 (acres)
Total 2.93 (acres) 3.45 (acres)
Open Waters*
Sutton Lake and Intake
Canal/Bay
3.20 (acres) 0.0 (acres)
Total 3.20 (acres) 0.0 (acres)
*Open Water Impacts are limited to the original footprint of the Sutton Lake Dam Design and will occur on sand
cement or concrete of the original dam, not native substrate, therefore are authorized as maintenance. The
impacts are included in the table for completeness.

2. Compensatory Mitigation

Mitigation must be provided for the proposed impacts as specified in the table below.
The Division has received an acceptance letter from the Lower Cape Fear Umbrella
Mitigation Bank dated March 4, 2020 to meet this mitigation requirement. Until the
bank receives and clears your payment, and proof of payment has been provided to this
Office, no impacts specified in this Authorization Certificate shall occur. For accounting
purposes, this Authorization Certificate authorizes payment to Lower Cape Fear
Umbrella Mitigation Bank to meet the following compensatory mitigation requirement
[15A NCAC 02H .0506 (b)(6)]:

Impact Type Compensatory
Mitigation Required
River and Sub-basin
Number
Riparian
Wetlands 2.51 (acres) Cape Fear River Basin
03030005

3. This approval is for the purpose and design described in your application and as
described in the Public Notice. The plans and specifications for this project are
incorporated by reference and are an enforceable part of the Certification. Any
modifications to the project require notification to DWR and may require an application
submittal to DWR with the appropriate fee. [15A NCAC 02H .0501 and .0502]

4. No waste, spoil, solids, or fill of any kind shall occur in wetlands or waters beyond the
footprint of the impacts (including temporary impacts) as authorized under this
Certification. [15A NCAC 02H .0501 and .0502]

5. All construction activities shall be performed and maintained in full compliance with G.S.
Chapter 113A Article 4 (Sediment and Pollution Control Act of 1973) and with the Coal
Ash Management Act of 2014. Sediment and erosion control measures should be installed
prior to any land clearing or construction. These measures should be routinely inspected
and properly maintained. Excessive silt and sediment loads can have numerous
detrimental effects on aquatic resources including destruction of spawning habitat,
suffocation of eggs, and clogging of gills of aquatic species.

6. Sediment and erosion control measures shall not be placed in wetlands or waters except
within the footprint of temporary or permanent impacts authorized under this
Certification. [15A NCAC 02H .0501 and .0502]

7. Erosion control matting that incorporates plastic mesh and/or plastic twine shall not be
used along streambanks or within wetlands. [15A NCAC 02B .0201]

8. Turbidity Standard – The turbidity standard of 50 NTUs (Nephelometric Turbidity
Units) shall not be exceeded as described in 15A NCAC 02B .0220. Appropriate
sediment and erosion control practices must be used to meet this standard. Turbidity
curtains shall be used as appropriate. Please notify the Wilmington Regional Office at
[phone] if any turbidity issues arise.

9. An NPDES Construction Stormwater Permit (NCG010000) is required for construction
projects that disturb one (1) or more acres of land. The NCG010000 Permit allows
stormwater to be discharged during land disturbing construction activities as stipulated
in the conditions of the permit. If the project is covered by this permit, full compliance
with permit conditions including the erosion & sedimentation control plan, inspections
and maintenance, self-monitoring, record keeping and reporting requirements is
required. [15A NCAC 02H .0506(b)(5) and (c)(5)]

10. All work in or adjacent to streams shall be conducted so that the flowing stream does not
come in contact with the disturbed area. Approved best management practices from the
most current version of the NC Sediment and Erosion Control Manual, or the NC DOT
Construction and Maintenance Activities Manual, such as sandbags, rock berms,
cofferdams, and other diversion structures shall be used to minimize excavation in
flowing water. [15A NCAC 02H .0506(b)(3) and (c)(3)]

11. Application of fertilizer to establish planted/seeded vegetation within disturbed riparian
areas and/or wetlands shall be conducted at agronomic rates and shall comply with all
other Federal, State and Local regulations. Fertilizer application shall be accomplished
in a manner that minimizes the risk of contact between the fertilizer and surface waters.
[15A NCAC 02B .0200 and 15A NCAC 02B .0231]

12. If concrete is used during construction, then all necessary measures shall be taken to
prevent direct contact between uncured or curing concrete and waters of the state.
Water that inadvertently contacts uncured concrete shall not be discharged to waters of
the state. [15A NCAC 02B .0200]

13. All mechanized equipment operated near surface waters shall be inspected and
maintained regularly to prevent contamination of surface waters from fuels, lubricants,
hydraulic fluids, or other toxic materials. Construction shall be staged in order to
minimize the exposure of equipment to surface waters to the maximum extent
practicable. Fueling, lubrication and general equipment maintenance shall not take place
within 50 feet of a waterbody or wetlands to prevent contamination by fuels and oils.
[15A NCAC 02H .0506(b)(3) and (c)(3) and 15A NCAC 02B .0211 (12)]

14. Heavy equipment working in wetlands shall be placed on mats or other measures shall
be taken to minimize soil disturbance. [15A NCAC 02H .0506(b)(3) and (c)(3)]

15. In accordance with 143-215.85(b), the applicant shall report any petroleum spill of 25
gallons or more; any spill regardless of amount that causes a sheen on surface waters;
any petroleum spill regardless of amount occurring within 100 feet of surface waters;
and any petroleum spill less than 25 gallons that cannot be cleaned up within 24 hours.

16. The permittee shall report to the Wilmington Regional Office at [phone] (after
hours and on weekends call 877-623-6748) any noncompliance with this certification,
any violation of stream or wetland standards [15A NCAC 02B .0200] including but not
limited to sediment impacts [15A NCAC 02B .0200]. Information shall be provided orally
within 24 hours (or the next business day if a weekend or holiday) from the time the
applicant became aware of the circumstances. A written submission shall also be
provided within 5 business days of the time the applicant becomes aware of the
circumstances. The written submission shall contain a description of the noncompliance,
and its causes; the period of noncompliance, including exact dates and times, if the
noncompliance has not been corrected, the anticipated time compliance is expected to
continue; and steps taken or planned to reduce, eliminate, and prevent reoccurrence of
the noncompliance. The Division may waive the written submission requirement on a
case-by-case basis

17. Mr. Steve Cahoon and Duke Energy shall conduct construction activities in a manner
consistent with State water quality standards (including any requirements resulting from
compliance with section 303(d) of the Clean Water Act) and any other appropriate
requirements of State and Federal law. [15A NCAC 02B .0200] If the Division determines
that such standards or laws are not being met (including the failure to sustain a
designated or achieved use) or that State or federal law is being violated, or that further
conditions are necessary to assure compliance, the Division may reevaluate and modify
this Certification. Before modifying the Certification, the Division shall notify Mr. Steve
Cahoon and Duke Energy and the U.S. Army Corps of Engineers, provide public notice in
accordance with 15A NCAC 02H .0503 and provide opportunity for public hearing in
accordance with 15A NCAC 02H .0504. Any new or revised conditions shall be provided
to Mr. Steve Cahoon and Duke Energy in writing, shall be provided to the U.S. Army Corps
of Engineers for reference in any Permit issued pursuant to Section 404 of the Clean
Water Act, and shall also become conditions of the 404 Permit for the project.

18. Upon completion of all permitted impacts included within the approval and any
subsequent modifications, the applicant shall be required to return a certificate of
completion (available on the DWR website https://edocs.deq.nc.gov/Forms/Certificate-
of-Completion). [15A NCAC 02H .0502(f)]

19. If the property or project is sold or transferred, the new Permittee shall be given a copy of
this Certification (and written authorization if applicable) and is responsible for
complying with all conditions. [15A NCAC 02H .0501 and .0502]

20. This Certification does not relieve the applicant of the responsibility to obtain all other
required Federal, State, or Local approvals before proceeding with the project, including
those required by, but not limited to Sediment and Erosion Control, Non-Discharge,
Water Supply Watershed, and Trout Buffer regulations.

21. This Certification neither grants nor affirms any property right, license, or privilege in
any waters, or any right of use in any waters. This Certification does not authorize any
person to interfere with the riparian rights, littoral rights, or water use rights of any other
person and this Certification does not create any prescriptive right or any right of priority
regarding any usage of water. This Certification shall not be interposed as a defense in
any action respecting the determination of riparian or littoral rights or other rights to
water use. No consumptive user is deemed by virtue of this Certification to possess any
prescriptive or other right of priority with respect to any other consumptive user
regardless of the quantity of the withdrawal or the date on which the withdrawal was
initiated or expanded.

22. This certification grants permission to the director, an authorized representative of the
Director, or DEQ staff, upon the presentation of proper credentials, to enter the property
during normal business hours. [15A NCAC 02H .0502(e)]

23. Non-compliance with or violation of the conditions herein set forth by a specific project
may result in revocation of this General Certification for the project and may also result
in criminal and/or civil penalties.

This approval to proceed with your proposed impacts or to conduct impacts to waters as
depicted in your application shall expire upon expiration of the 404 or CAMA Permit. The
conditions in effect on the date of issuance shall remain in effect for the life of the project,
regardless of the expiration date of this Certification. [15A NCAC 02H .0507(d)(2) and 15A
NCAC 02H .0506]

This the 20th Day of March 2020

Paul Wojoski, Supervisor
401 & Buffer Permitting Branch

paw
WQC004207