HomeMy WebLinkAbout20031110 Ver 6_Approval Letter_20100609- LTIF
A
NCDENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H, Sullins
Governor Director
June 9, 2010
Steven D. Jester, Vice President
Hydro Strategy, Licensing and Lake Services
Duke Energy Carolinas, LLC
526 South Church Street
P.O. Box 1006
Charlotte, NC 28201-1006
Re:
Nantahala Hydroelectric Project
Macon and Clay Counties
DWQ #2003-1110, Version 6.0; Federal Energy Regulatory
Commission Project Number 2692
APPROVAL of 401 Water Quality Certification
Dear Mr. Jester:
Attached hereto is a copy of Certification No. 3829 issued to Duke Energy Carolinas, LLC.
dated June 9, 2010. In addition, you should get any other applicable federal, state or local
permits before you go ahead with your project including (but not limited to) Solid Waste,
Sediment and Erosion Control, Stormwater, Dam Safety, Non-discharge and Water Supply
Watershed regulations.
If we can be of further assistance, do not hesitate to contact us.
Sinc ly,
oleen H. Sullins
CS/jrd
Attachments: Certificate of Completion
cc: Kevin Barnett, DWQ, Asheville Regional Office
Roger Edwards, DWQ Asheville Regional Office
File Copy
Jim Mead, NC Division of Water Resources
Ms. Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First
Street, N.E., Washington, DC 20426
Steve Johnson, Duke Energy Carolinas - Hydro Strategy and Licensing
Dee Freeman
Secretary
Filename: Duke Energy Nantahala 401 version 1.4
401 Oversight/Express Review Permitting Unit
1650 Mail Service Center, Raleigh, North Carolina 27699-1650
Location: 2321 Crabtree Blvd., Raleigh, North Carolina 27604
Phone: 919-733-17861 FAX: 919-733-6893
Intemet: http://h2o.enr.state.nc.us/ncwetlands/
NorthCarolina
Natzmallff
An Equal opportunity 1 Affirmative Action Employer
Duke Energy Carolinas, LLC
Page 2 of 4
June 9, 2010
NORTH CAROLINA 401 WATER QUALITY CERTIFICATION
THIS CERTIFICATION is issued in conformity with the requirements of Section 401 Public
Laws 92-500 and 95-217 of the United States and subject to the North Carolina Division of
Water Quality (DWQ) Regulations in 15 NCAC 2H, Section .0500 to Duke Energy Carolinas,
Inc. to continue the operation of hydropower dams at the Nantahala Hydroelectric Project in
Macon and Clay Counties, North Carolina pursuant to an application filed on the 7t' day of
December 2009 which included the Nantahala Cooperative Stakeholder Team (NCST)
Settlement Agreement dated October 23, 2003 and executed on October 29, 2003.
The application and supporting documentation provide adequate assurance that the proposed
work will not result in a violation of applicable Water Quality Standards and discharge
guidelines. Therefore, the State of North Carolina certifies that this activity will not violate the
applicable portions of Sections 301, 302, 303, 306, 307 of PL 92-500 and PL 95-217 if
conducted in accordance with the application, the supporting documentation, and conditions
hereinafter set forth.
This approval is only valid for the purpose and design submitted in the application materials and
as described in the Public Notice. If the project is changed, a new application for a new
Certification is required. If the property is sold, the new owner must be given a copy of the
Certification and approval letter and is thereby responsible for complying with all conditions of
this Certification. Any new owner must notify the Division and request the Certification be
issued in their name. Should wetland or stream fill be requested in the future, additional
compensatory mitigation may be required as described in 15A NCAC 2H .0506 (h) (6) and (7).
If any plan revisions from the approved site plan result in a change in stream or wetland impact
or an increase in impervious surfaces, the DWQ shall be notified in writing and a new
application for 401 Certification may be required. For this approval to be valid, compliance with
the conditions listed below is required.
Conditions of Certification:
1. No waste, spoil, solids, or fill of any kind shall occur in wetlands, waters, or riparian areas
beyond the footprint of the impacts depicted in the Certification. All construction activities,
including the design, installation, operation, and maintenance of sediment and erosion
control Best Management Practices, shall be performed so that no violations of state water
quality standards, statutes, or rules occur;
2. Sediment and erosion control measures shall not be placed in wetlands or waters to the
maximum extent practicable. If placement of sediment and erosion control devices in
wetlands and waters is unavoidable, they shall be removed and the natural grade restored
within six months of the date that the Division of Land Resources has released the project;
3. The Applicant shall identify and report in writing existing and proposed consumptive
uses of West Fork Project waters to NCDWQ and the N.C. Division of Water Resources
(NCDWR). The Applicant shall report the existing or projected (as appropriate) average
consumptive withdrawal and maximum approved withdrawal capacity for each water
intake in excess of one million gallons per day that is located or proposed for location
within the FERC Project boundary. The Applicant shall report existing consumptive uses
to NCDWQ and NCDWR within 60 days following the acceptance of the License and
shall report proposed new or expanded consumptive uses to NCDWQ and NCDWR
Duke Energy Carolinas, LLC
Page 3 of 4
June 9, 2010
within 30 days following receipt of a written request for approval of a proposed new or
expanded withdrawal and before submitting any approval requests to FERC.
4. This Certification does not grant or affirm any property right, license or privilege in any
waters or any right of use in any waters. This Certification does not authorize any person
to interfere with the riparian rights, littoral rights or water use rights of any other person,
and this Certification does not create any prescriptive right or any right of priority
regarding any usage of water. No person shall interpose this Certification as.a defense
in any action respecting the determination of riparian or littoral rights or other water use
rights. No consumptive user is deemed by virtue of this Certification to possess any
prescriptive or other right of priority with respect to any other consumptive user
regardless of the quantity of the withdrawal or the date on which the withdrawal was
initiated or expanded. This Certification issues on the express understanding of DENR
that, pursuant to Federal Power Act section 27, 16 U.S.C. § 821, the License does not
establish or determine a proprietary right to any use of water. It establishes the nature of
the use to which a proprietary right may be put under the Federal Power Act.
Continuing Compliance:
5. Duke Energy Carolinas, LLC. shall conduct its activities in a manner consistent with
State water quality standards (including any requirements resulting from compliance with
section 303(d) of the Clean Water Act) and any other appropriate requirements of State
law and federal law. If the Division determines that as a result of the discharge or
operation of the Nantahala Project such standards or laws are not being met (including
the failure to sustain a designated or achieved use) or that State or federal law.is being
violated, or that further conditions are necessary to assure compliance, the Division may
reevaluate and modify this Certification to include conditions relative to the discharge or
operation of the Nantahala Project appropriate to assure compliance with such
standards and requirements in accordance with 15A NCAC 2H.0507(d). Before
modifying the Certification, the Division shall notify Duke Energy Carolinas, LLC. and the
Federal Energy Regulatory Commission, provide public notice in accordance with 15A
NCAC 2H.0503 and provide opportunity for public hearing in accordance with 15A
NCAC 2H.0504. Any new or revised conditions shall be provided to Duke Energy
Carolinas, Inc. in writing, shall be provided to the Federal Energy Regulatory
Commission for reference in any Permit or License issued by that agency and shall also
become conditions of the FERC License for the project.
Other Conditions
8. Comprehensive Settlement Agreement - The Comprehensive Settlement Agreement
dated October 23, 2003 is hereby incorporated into this Certification by reference. In
particular, the following sections, including any attachments identified within those
sections, of the TCST Settlement Agreement dated October 23, 2003 are hereby
incorporated into this Certification by reference: Section 1.0 (Reservoir Level
Agreements); Section 3.0 (Minimum Flow Agreements for Bypassed Reaches); Section
4.0 Scheduled High Flow Releases to Nantahala Bypassed Reach; Section 6.0
Shoreline Management; Section 7.0 (Sediment Management Agreements); Section 9.0
Compliance Monitoring and Reporting Requirements as well as the Low Inflow Protocol
Hydro Project Maintenance and Emergency Protocol (HPMEP) and Minimum Flow For
Bypassed Reaches for the Nantahala Project. If Duke Energy Carolinas believes that
Duke Energy Carolinas, LLC
Page 4 of 4
June 9, 2010
any items of that Comprehensive Settlement Agreement are not pertinent to water
quality, then they shall so notify DWQ in writing for DWQ's written concurrence.
9. This Certification shall only be effect if and when Duke Energy Carolinas, LLC pays the
costs of the Public Notices for this project. DWQ shall be copied on the letter and check
which pays for the cost of these Notices.
Also, this approval to proceed with your proposed impacts or to conduct impacts to
waters as depicted in your application shall expire upon expiration of the License that
the FERC will issue subsequent to this Certification.
If you wish to contest any statement in the attached Certification you must file a petition for an
administrative hearing. You may obtain the petition form from the office of Administrative
hearings. You must file the petition with the office of Administrative Hearings within thirty (30)
days of receipt of this notice. A petition is considered filed when it is received in the office of
Administrative Hearings during normal office hours. The Office of Administrative Hearings
accepts filings Monday through Friday between the hours of 8:00am and 5:00pm, except for
official state holidays. The original and one (1) copy of the petition must be filed with the Office
of Administrative Hearings.
The petition may be faxed-provided the original and one copy of the document is received by
the Office of Administrative Hearings within five (5) business days following the faxed
transmission.
The mailing address for the Office of Administrative Hearings is:
Office of Administrative Hearings
6714 Mail Service Center
Raleigh, NC 27699-6714
Telephone: (919)-733-2698, Facsimile: (919)-733-3478
A copy of the petition must also be served on DENR as follows:
Ms. Mary Penny Thompson, General Counsel
Department of Environment and Natural Resources
1601 Mail Service Center
Raleigh, NC 27699-1601
This the 9th day of June 2010
DIVI N O WA R LITY
oleen H. Sullins
CS/jrd