20080915 Ver 1_Environmental Impact Statement_20090922

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY I
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c ATLANTA FEDERAL CENTER
61 FORSYTH STREET
VT?< PRO! ATLANTA, GEORGIA 30303-8960
August 31, 2009
Kimberly D. Bose, Secretary
Federal Energy Regulatory Commission
888 First Street, N.E.
Washington, DC 20426
SEP E E 2009
WEruwos AND sro NwA ERR BRANCH
SUBJECT: Final Environmental Impact Statement for a New Major License for the Catawba-
Wateree Hydroelectric Project, FERC Project No. P-2232-522 in Alexander,
Burke, Caldwell, Catawba, Gaston, Iredell, Lincoln, McDowell, and Mecklenburg
Counties, North Carolina; and Chester, Fairfield, Kershaw, Lancaster, and York
Counties, South Carolina; CEQ Number 20090258
Dear Secretary Bose:
The U.S. Environmental Protection Agency (EPA) has reviewed the referenced Final
Environmental Impact Statement (EIS) in accordance with its responsibilities under Section 309
of the Clean Air Act and Section 102(2)(C) of the National Environmental Policy Act (NEPA).
The Federal Energy Regulatory Commission (FERC) proposes to approve a major new license
for the Catawba-Wateree Hydroelectric Project, FERC Project No. 2232 (Project). The Project is
located in the Catawba-Wateree River Basin in Alexander, Burke, Caldwell, Catawba, Gaston,
Iredell, Lincoln, McDowell, and Mecklenburg Counties, North Carolina; and Chester, Fairfield,
Kershaw, Lancaster, and York Counties, South Carolina. Duke Energy Carolinas, LLC (Duke
Energy) owns and operates the Project. The current license was issued in 1958 and expired on
August 31, 2008. On August 29, 2006, Duke Energy filed an application with FERC for a new
license under Part I of the Federal Power Act to continue operating its existing Project. In the
interim, FERC issued an annual license, which will continue (renewed on an annual basis) until
FERC has made a decision on a new license.
Three alternatives were evaluated in the Final EIS: 1) the no action alternative
(continued operation as required by the existing license); 2) Comprehensive Relicensing
Agreement (CRA), including conditions developed by Duke Energy in cooperation with a
number of public and private stakeholders; and 3) FERC staff-recommended alternative. The
FERC staff alternative, which includes the CRA conditions and some additional modifications, is
the preferred alternative.
In our comments on the Draft EIS, EPA requested to be involved in the development and
implementation of the Flow and Water Quality Implementation Plan (FWQIP) and the Water
Quality Monitoring Plan (WQMP). On Page 131 of the Final EIS, FERC recommended
inclusion of EPA in the consultation list for the FWQIP and to receive monitoring results during
the license period. However, this recommendation is not included as part of the description of
the staff-recommended alternative. EPA has a role in addressing these water quality issues.
Intemat Address (URL) * http://www.epa.aov
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j Although water quantity allocations (i.e., flow) are generally issues of state law, "water quantity
is closely related to water quality; a sufficient lowering of the water quantity in a body of water
could destroy all of its designated uses, be it for drinking water, recreation, navigation or, as
here, as a fishery."' Therefore, EPA requests that the Record of Decision and License Order
include a specific measure that Duke Energy should consult with EPA on the implementation of
the FWQIP and WQMP and to receive copies of the annual monitoring report verifying
compliance with applicable water quality standards. A comparable example would be what was
included for the National Oceanic and Atmospheric Administration National Marine Fisheries
Service for the Maintenance and Emergency Protocol in the staff-recommended alternative.
EPA's primary issue raised in the review of the Draft EIS was concern related to water
quality in Project dam releases, particularly dissolved oxygen (DO) levels, from the Bridgewater
development. EPA appreciates inclusion in the Final EIS of an updated description of the
applicable trout water quality standards in the Catawba River below the Linville dam. As stated
in the Final EIS, the current DO standards for the Catawba River at the point that the water is
released from the Bridgewater powerhouse are 4.0 mg/1 minimum instantaneous and 5.0 mg/l
minimum daily average. The Final EIS also correctly reflects the application of the revised
standards for trout usage at a point 0.6 mile upstream of Muddy Creek's confluence with the
Catawba River, at which point the DO levels must not be less than 6.0 mg/1 at all times.
However, the Final EIS states that the trout standards "do not apply until approximately 1 mile
downstream of the Bridgewater powerhouse." Upon further analysis by EPA, including a site
visit, it appears that the confluence of the Catawba River and Muddy Creek is approximately one
mile downstream of the Linville dam. Therefore, it appears that the trout standards apply at a
distance of less than one mile downstream of the Bridgewater powerhouse. This location is
approximate due to the complex nature of the confluence of Muddy Creek and the Catawba
River.
EPA's main concern with this Project continues to be that discharges from the Linville
dam do not cause a violation of downstream trout water quality standards. North Carolina Water
Quality Certification Rules (15A NCAC 02H .0506) state that, "The Director shall issue a
certification upon determining that existing uses are not removed or degraded by a discharge to
classified surface waters for an activity which ...(4) does not result in cumulative impacts, based
upon past or reasonably anticipated future impacts, that cause or will cause a violation of
downstream water quality standards." When the North Carolina Division of Water Quality
(NCDWQ) issued the Clean Water Act (CWA) Section 401 water quality certification for this
project on November 14, 2008, these new standards were not in place. Therefore, the need to
consider the impact of Duke Energy's operations on these different downstream standards was
not part of the NCDWQ review of Duke Energy's Section 401 application. By copy of this
letter, EPA requests that NCDWQ consider this issue in the context of the current Section 401
certification to ensure the Project's compliance with all applicable water quality standards.
i See PUD No. 1 of Jefferson County v. Washington Dep't of Ecology (92-1911), 511 U.S. 700
(1994).
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Duke Energy is proposing to build a new powerhouse at the Linville dam that will
include DO aeration capability on all units sufficient to meet any applicable DO standards now
and in the future. Duke Energy also proposes to install a new flow valve with aerating capability
that would support new minimum flow releases into the Catawba bypassed reach that would flow
into the Catawba River at Muddy Creek. Since the Bridgewater powerhouse is proposed to have
significant aeration capabilities installed as part of improvements described in the Final EIS,
Duke Energy will have the capability to meet any applicable DO standards and should utilize
these capabilities as conditions require. Other than a commitment to install this technology to
meet DO requirements, there are no specific operating protocols in Duke Energy's license
application, the CRA, or Section 401 application/certification that specify when this technology
would be used or that might preclude the utilization of this technology to meet these standards.
In reviewing the final Section 401 water quality certification issued by NCDWQ, there is
an expectation that the Project will not result in a violation of the applicable water quality
standards and discharge guidelines. Even though these new standards were not in place at the
time of certification, the certification and the CWA require Duke Energy to meet all applicable
water quality standards in its immediate discharges and to not contribute to the violation of
downstream water quality standards. Therefore, EPA recommends that the Record of Decision
and License Order include a statement that Duke Energy should meet all applicable water quality
standards, including the protection of the designated trout use applicable 0.6 mile upstream of
Muddy Creek's confluence with the Catawba River, and requiring DO levels of not less than 6.0
mg/1 at all times. Duke Energy currently has proposed a monitoring location for compliance that
is in approximately the same location as the point at which the trout standard applies. EPA
recommends that this compliance location would be an appropriate monitoring point at which to
determine compliance with the downstream trout water quality standards.
EPA also offers a technical correction to information included in the Final EIS related to
the description of proposed stream flow mitigation. In Appendix D, Comment Response Matrix,
there are several comment responses that state "...determination of the amount of mitigation is
based on precedence in guidelines developed by the US Corps of Engineers, EPA and NCDWQ
(2003)." The reference in the literature cited section of the Final EIS is to "Stream Mitigation
Guidelines" developed by the U.S. Army Corps of Engineers (USACE) Wilmington District,
EPA, NCDWQ and North Carolina Wildlife Resources Commission in 2003. These guidelines
identify mitigation requirements as part of issuing USACE permits under CWA Section 404. It
is important to note that this guidance may or may not be applicable for use in Section 401
certifications without Section 404 permits. Regardless, the 2003 Stream Mitigation Guidelines
were not utilized for this project. The actual guidelines that were followed to determine stream
flow mitigation for the Catawba-Wateree project was internal, draft NCDWQ stream mitigation
guidance for FERC-related 401 certifications dated January 2007. This guidance was neither
developed nor approved by EPA. The use of this policy for projects such as this has been
recently brought to EPA's attention, and the policy is currently under review.
Finally, EPA has learned that the South Carolina Board of Health and Environmental
Control (Board) denied the Section 401 certification for discharges from this project in the state
of South Carolina. We understand that Duke has petitioned FERC for a declaratory judgment
finding, among other things, that South Carolina Department of Health and Environmental
Control (SCDHEC) waived certification since the certification had not been finalized in a timely
manner. Since SCDHEC had issued the certification in the time frame allowed under the CWA,
EPA believes it did not waive certification. The fact that it was challenged and did not take
effect is not relevant. Further, given the action of the Board, there is no valid section 401
certification from SCDHEC for this project and FERC cannot issue the license until such time
that SCDHEC either issues a certification or waives certification.
In summary, while we continue to have concerns that the proposed action has the
potential for impacts to aquatic species in the Catawba River below the Bridgewater
development, EPA supports the environmental protection measures and monitoring programs as
described in the Final EIS. We appreciate the opportunity to review the proposed action. Please
contact Ben West of my staff at [phone] if you have any questions or want to discuss our
comments further.
Sincerely,
}
Heinz J. Mueller, Chief
NEPA Program Office
Office of Policy and Management
cc: U.S. Environmental Protection Agency, Region 4 Water Protection Division
U.S. Fish and Wildlife Service, Asheville Field Office
U.S. Fish and Wildlife Service, Charleston Field Office
NOAA National Marine Fisheries Service
North Carolina Division of Water Resources
North Carolina Division of Water Quality
North Carolina Wildlife Resources Commission
South Carolina Department of Natural Resources
South Carolina Department of Health and Environmental Control
Duke Energy Carolinas, LLC
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