20031110 Ver 6_Approval Letter_20100730

NC.NEW
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins
Governor Director
July 30, 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 - REVISED
Dear Mr. Jester:
Dee Freeman
Secretary
Attached hereto is a copy of Certification No. 3829 issued to Duke Energy Carolinas, LLC dated
July 30, 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.
Si rely,
Coleen H. Sullins
CS/jrd
cc: Kevin Barnett, DWQ, Asheville Regional Office
Roger Edwards, DWQ Asheville Regional Office
File Copy
Jim Mead, INC 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
Filename: Duke Energy Nantahala 401 version 1.6
401 OversighVExpress Review Permitting Unit
1650 Mail Service Center, Raleigh, North Carolina 27699-1650
Location: 2321 Crabtree Blvd., Raleigh, North Carolina 27604
Phone: [phone] FAX: [phone]
Internet: http://h2o.enr.state.nc.usincwetlands]
NorthCarolina
?aturatlr?
An Equal Opportunity l Affirmative Action Employer
Duke Energy Carolinas, LLC
Page 2 of 4
July 30, 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 or the Division) Regulations in 15 NCAC 21-1, Section .0500 to Duke
Energy Carolinas, LLC 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 7th 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 North Carolina Division of Land Resources has
released the project.
3. Duke Energy Carolinas, LLC shall identify and report in writing existing and proposed
consumptive uses of Nantahala Project waters to DWQ and the North Carolina Division
of Water Resources (DWR). Duke Energy Carolinas, LLC 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 Federal Energy Regulatory Commission
Duke Energy Carolinas, LLC
Page 3 of 4
July 30, 2010
(FERC) Project boundary. Duke Energy Carolinas, LLC shall report existing
consumptive uses to DWQ and DWR within 60 days following the acceptance of the
License and shall report proposed new or expanded consumptive uses to DWQ and
DWR 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 the
North Carolina Department of Environment and Natural Resources (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.
Continuinq 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 requirernentz, in accordance with i5A NCAC 2H.0507(d). Beiuie
modifying the Certification, the Division shall notify Duke Energy Carolinas, LLC and the
FERC, provide public notice in accordance with 15A NCAC 2H.0503 and provide
opportunity for public hearing in accordance with 15A NCAC 21-1.0504. Any new or
revised conditions shall be provided to Duke Energy Carolinas, LLC in writing, shall be
provided to the FERC 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
6. 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 NCST Settlement Agreement dated October 23, 2003 are hereby
incorporated into this Certification by reference: Section 1.0 (Reservoir Level
Agreements); Section 4.0 (Minimum Flow Agreements for Bypassed Reaches); Section
7.0 Shoreline Management; Section 9.0 (Sediment Management Agreements); Section
13.0 Agreements on Compliance Monitoring and Reporting Requirements as well as
Duke Energy Carolinas, LLC
Page 4 of 4
July 30, 2010
Attachment B - Low Inflow Protocol (LIP) for the Nantahala Project and Attachment C -
Hydro Project Maintenance and Emergency Protocol (HPMEP) for the Nantahala
Project. If Duke Energy Carolinas, LLC believes that any of the listed sections or
attachments of that Comprehensive Settlement Agreement are not pertinent to water
quality, then they shall so notify DWQ in writing for DWQ's written concurrence.
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 sixty (60)
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: [phone], 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 30th day of July 2010
DIVISION OF W UALITY
oleen H. Sullins
CS/jrd