20030179 Ver 6_Public Comments_20060719

Mr. John Boaze
515 Tarhelia Heights
Whittier, NC 28789
July 19, 2006
Honorable Magalie R. Salas
Secretary
FERC
888 First St., NE, Room lA
Washington, DC 20426
RE: Motion to Reject Duke Energy Co. Clarification of Certain Matters
filed on July 7, 2006 Relicensing --- Project No. 2602-005 Dillsboro Dam Relicensing;
Project No. 2602-007-Dillsboro Dam-Surrender; Project No. 2686-032 West Fork
Tuckasegee; Project No. 2698-033 East Fork Tuckasegee; Project; Project No. 2601-007;
Bryson.
Dear Secretary Salas:
The following motion and comments are submitted to the FERC from me as a
private citizen. I presently serve as an environmental consultant to Jackson and Macon
Counties and the Town of Franklin. Previously, I had worked with the predecessor to
Duke Energy's ownership of the above-captioned hydros, Nantahala Power, in the
preparation of consultation materials under the traditional licensing process.
It is a sad day when the Duke Energy Hydro Relicensing staff feels that they should
cover their own mistakes by blaming someone in the private sector for having raised in a
public forum questions with regard to the adequacy of maps provided belatedly by Duke.
The same maps that FERC in its recent FEA has determined need to be clarified and
resubmitted, unfortunately after issuance of a license. See, e.g. July 14, 2006 FEA, at C-5
- "Response: Staff agree that the project boundary needs revised and recommend that
Duke prepare a new project boundary map, for the Bryson project, consistent with the
Commission's current specifications."
On May 30, 2006, I received the attached email from the U. S. Fish and Wildlife Service
pointing out that there may be a problem with the Bryson Hydro Project boundary. I
checked the information and agreed that there may be a problem.
At the FERC public meeting held on June 8, 2006 for the Bryson and other hydro
projects, I raised this same issue as noted on Page 38, Line 15 of the Transcript. At that

time, none of the 8-10 Duke Energy staff present at this meeting were willing to
comment on this issue. In the filing, Duke called me a liar. This same issue of the map's
inadequacy was raised by the BIA in June 2000 (ATTACHED), but the Duke Energy
staff never responded to the BIA request.
Duke Energy staff went back to their respective offices and found a map and deed
showing that Duke Energy owns land within the Cherokee Reservation. This deed was
never made available to me when our firm compiled the First Stage Consultation
package. This deed was not made available to BIA when they requested clarification of
the boundary between Trust land and the Bryson project. Duke Energy did not submit
the information to the FERC. To cover this mistake, they then accused me of not telling
the truth.
This pattern of blaming me for their staff's shortcomings was even carried further. I
pointed out the Duke Energy mussel survey was inadequate. This statement was based
on the U. S. Fish and Wildlife Service guidelines (ATTACHED) for mussel
surveys/relocations. Again, Duke Energy Staff called me wrong. Rather than admit that
they had made a mistake, Duke Energy Staff elected to call me a liar. The real problem
is, Duke Energy staff is not familiar with U. S. Fish and Wildlife Service guidelines.
As it is too much to expect Duke to issue a public apology to me which I feel is necessary
to correct this matter, I request that the FERC reject Duke's filing.
Sincerely,
John L. Boaze
Cc: Service Lists for P-2601, P-2602, P-2686, P-2698
------- Original Message
SubjectBryson

Date:Tue, 30 May 2006 14:40:16 -
0600
From:Mark A Cantrell cr fws.~.,ov
To:fwa(c~dnet.net
Based on these maps it sure looks like the project boundary is within the reservation. Since this is a
federally-recognized tribe, the BIA would have 4 (e) authority to protect the reservation. In addition,
section 10(e) requires that licensees pay annual charges to tribes for projects located within the boundaries
of Indian reservations.
Mark A. Cantrell
U.S. Fish & Wildlife Service
160 Zillicoa Street
Asheville, NC 28801
828/258-3939, ext 227
fax: [phone]
mobile: [phone]
mark a cantrell a,fws.~ov
"Our mission is working with others to conserve, protect, and enhance fish, wildlife, and plants and their
habitats for the continuing benefit of the American people."

U. S. FISH AND WILDLIFE SERVICE
GUIDELINES FOR CONDUCTING MUSSEL
SURVEYS AND MUSSEL RELOCATION PROJECTS
MUSSEL RELOCATIONMETHODS-Final

The following plan is general description of methods to relocate all mussels, including
the Appalachian elktoe from the footprints of project impact sites. Amore detailed
mussel relocation plan, including proposed schedules, personnel, and salvage/relocation
sites should be developed and approved prior to mussel relocation. The following
methods were developed based on recommendations outlined by Dunn et a12000) and
from procedures developed by the North Carolina Wildlife Resources Commission
(NCWRC) (Watson 2002). These procedures were developed in order to relocate
freshwater mussels in such a way as to reduce stress and minimize the risk of injury
while the species are in transit. If at any time during the relocation it. is determined that
these procedures are not meeting the stated objectives, then in cooperation with the
NCWRC and the USFWS, more stringent methods may be developed to insure the
mussels are relocated successfully. Relocation efforts will be carried out under the direct
supervision of biologists with appropriate federal ands state permits.
Selection of Relocation Sites
The project proponent (or its qualified consultants) shall identify appropriate relocation
sites in close proximity to ,but outside of the area of effect of the project. Potential sites
were selected based on existing habitat conditions, including substrate suitability,
hydraulic refugia, and stream bank stability, and demarked in the field with flagging and
rebar. These relocation sites will need approval of the USFWS. Descriptions of each
relocation site will be provided, to include detailed location, suitability, extant mussels
species present, and descriptions of any limitations as to capacity, access, or other
concerns.
Collection of Mussels at Impact Site
All individual Appalachian elktoe found in the project footprints will be relocated to the
relocation site approved for each project impact area. The salvage area will consist of the
section of the river that will be directly disturbed by construction procedures and extend
on be bankfull width upstream and at least four bankfull widths downstream of the
area of effect of the project. In addition to the Appalachian elktoe, the state Special
Concern species may also occur in the project areas. All freshwater mussels found at the
impact site will be relocated to the sites chosen.
Three visual-survey sweeps of each site, as previously defined, be conducted to salvage
freshwater mussels from the anticipated impact area(s). Additionally, apre-construction
site visit and sweep of each site is to be performed approximately 1 week prior to
construction at each of the impact area(s). If any mussels are found during the pre-
construction sweeps, subsequent sweeps will be conducted, if determined necessary by
the appropriate agencies.
The type of visual method used (mask/snorkel, batiscope, SCUBA, etc.) will be
determined during the salvage effort and will be based on depth, flow, visibility and
temperature. A minimum of a 2-person crew will perform the relocation. Dunn et al.
(2000) stressed the importance of personnel experienced with handling freshwater
mussels in successful relocation projects. The relocation crew will be supervised by one
5

lead technical specialist, and all of the personnel used will be experienced with handling
freshwater mussels. Areview/training session will be conducted prior to beginning the
relocation efforts to insure each member of the relocation team is properly briefed and
understands their respective roles in the operation.
Hand collecting of mussels will be performed by the surveyors spread out across the river
beginning at the downstream end of the salvage area and proceeding upstream. Each
crew member will carry dive mesh bag to place the mussels into. After the sweep of the
salvage area has been performed, the mussels collected will be carried to the banks for
data recording.
Data Processing
All mussels will be measured (mm) and tagged and then placed in mesh dive bag and
kept in shaded portion of the river until ready for transport. All mussel species will be
tagged on both valves. Numerous relocation projects report scrubbing mussels with
burlap to remove any algae, mud, or other debris and then drying to apply tags. This
creates additional stress on the mussels, and does not appear to be necessary. Tags have
been successfully applied to un-cleaned, moist mussels in other areas of North Carolina.
Mussels will be kept as moist as possible while measuring and affixing the tags to avoid
unnecessary stress. The tags (Hallprint Tags) are made of polyethylene, oval in shape,
and approximately 9 mm long by 4 mm wide. Each tag is colored (e.g., green) and also
has a unique 4-character code, which begins with a letter followed by 3 numbers. The
tags will be applied to the mussels using Instant Krazy Glue© or another quick dry
epoxy. Once the adhesive is dry, the mussels will be placed back into the stream in the
designated mesh bags. This procedure will be repeated until all the collected mussels are
tagged and measured and ready for transport. Each individual mussel will be kept out of
the water for a period less than 5 minutes for measurements, data recording and tagging.
Transportation to Relocation Site
After the animals are collected from their source area, they will be transported to the
selected relocation site. The first method merely involves layering the mussels in damp
burlap within 10-gallon coolers, or other appropriate containers. Pieces of burlap soaked
in the stream and will be placed in the coolers. The tagged mussels will then be placed
on top of the damp burlap so no mussels are stacked on each other. A maximum of 50
mussels will be placed in each cooler with about 3 to 4 layers per cooler.
Preparation of Relocation Site
If the mussel relocations are conducted as a one-time relocation/without monitoring, such
as the goal of a relocation that is simply to provide the impacted mussels a chance of
survival. This is the least expensive relocation option and gives the individual mussels
that may otherwise be destroyed by the proposed action a chance of survival. However,
without monitoring of survival, the effectiveness of relocation as a mitigative measure for
these projects cannot be determined. This relocation option is not allowed for
endangered or threatened species.

If the mussel relocations include endangered or threatened species, or as part of any
mitigation plan, a detailed monitoring plan will be developed in conjunction with
USFWS and NCWRC to gauge the success of the relocation in the future, the following
simple protocol for placement will be followed, to allow for monitoring. The relocation
sites will be divided into a grid of 1-m2 segments, the number of which will be
determined by the number of mussels found for placement in the relocation sites. Each
segment will be assigned a number. A permanent grid will not be placed into the river
because of concerns of increased chance of vandalism due to the shallow depth, and high
recreational use of the river. Two portable 1-m2 squares will be utilized. Relocated
mussels will then be placed by hand into the substrate within the numbered squares. The
number of each mussel species placed in each square will be recorded. Density of each
species within the 1-m2 square will not be increased by more than 3 times. Cope et al.
(2003) demonstrated that increasing the density of mussels 2-3 times did not adversely
affect survival rates. The number of mussels placed into each 1-m2 square will be
dependent on the number of mussels collected at the salvage sites and the quality of the
relocation habitat. Typically resident mussels at relocation sites are also tagged and
monitored as part of mussel relocation efforts in order to compare survival rates of
relocated mussels to the resident mussels. If there are resident individuals present in the
relocation plots, then the residents will be tagged and returned to the relocation plots
where they are found in order to gauge comparative survival.
Monitoring
The relocation sites will be monitored for recovery, survival (of recovered mussels) and
movement 1 month after the all mussels have been removed from the defined salvage
areas. One month after relocating the mussels, visual surveys for mussels will be
conducted at the relocation site. Mussels observed at the surface will be taken from the
substrate and recorded and placed back into the squares they were taken from. This initial
survey will be conducted to record any mortality that would result from the handling of
mussels. Excavation of the grid will not be performed to avoid additional stress on the
mussels and to maintain substrate stability. Visual surveys will also be conducted in a
10-m x 10-m area downstream of the relocation grid to record any mussels moving out of
the grid. A report detailing the findings of this monitoring will be provided to the
appropriate agencies.
LITERATURE CITED
Cope, W.G. and D.L. Waller. 1995. Evaluation of freshwater mussel relocations as a
conservation and management strategy. Regulated Rivers: Research and
Management 11: 147-155.

DiMaio, J. and L.D. Corkum. 1995. Relationship between the spatial distribution of
freshwater mussels (Bivalvia:Unionidae) and the hydrological variability of
rivers. Canadian Journal of Zoology 73: 663-671.
Dunn, H.L., B.E. Sietman, and D.E. Kelner 2000. Evaluation of recent Unionid
(Bivalvia) relocations and suggestions for future relocations and and
reintroductions. Pages 169-183. In: Freshwater Mollusk Symposia Proceedings
(R.A. Tankersly, D.I. Warmolts, G.T. Waters, B.J. Armitage, P.D. Johnson &
R.S. Butler eds), 169-183. Ohio Biological Survey, Columbus Ohio.
Neves, R.J. 1993. A state of the Unionids address. Pp. 1-10 in K.S. Cummings, A.C.
Buchanan, and L.M. Koch, eds. Proc. of the UMRCC symposium on the
Conservation and Management of Freshwater Mussels. UMRCC. Rock Island
IL.189 pp.
Rohde, F.C., R.G. Arndt and S.M. Smith. 2001. Longitudinal Succession of fishes in the
Dan River in Virginia and North Carolina (Blue Ridge/Piedmont Provinces).
Southeastern Fishes Council Proceedings, 42:1-13.
Rosgen, D. L. 1998. River Restoration and Natural Channel Design. Course Handbook.
Wildland Hydrology. Pagosa Springs, CO.
Watson, B.T. 2002. Freshwater Mussel and Snail Restoration in the Piedmont of North
Carolina: 2001 Progress Report. North Carolina Wildlife Resources Commission.
15 January 2002.

FW: eService
Subject: FW: eService
From: "Bernstein, Marc" <[e-mail]>
Date: Tue, 10 Oct 2006 10:16:03 -0400
To: "Dorney, John" <[e-mail]>
CC: "Steve Reed" <[e-mail]>
John,
It is remarkable that Mr. Nolan did not even copy DWQ on this filing, which has everything to do with DWQ. Are
you planning to have a hearing on these 401s when they come around?
Marc Bernstein
Special Deputy Attorney General
NC Department of Justice
From: [e-mail] [mailto:[e-mail]]
Sent: Thursday, October 05, 2006 4:59 PM
To: [e-mail]; [e-mail]; [e-mail]; [e-mail];
[e-mail]; [e-mail]; [e-mail]; [e-mail];
Bernstein, Marc; [e-mail]; [e-mail]; [e-mail]; [e-mail];
[e-mail]; [e-mail]; [e-mail]; [e-mail]
Cc: [e-mail]
Subject: eService
The attached documents were filed today.
Paul V. Nolan
5515 North 17th Street
Arlington, VA 22205-2722
Phone: [phone]
Cell: 703-587-5895
Fax: [phone]
Truck: 703-946-8153
This communication and any accompanying documents are confidential and privileged. They are intended for
the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure,
copying, distribution, or the taking of any action in reliance upon the communication is strictly prohibited.
Moreover, any such inadvertent disclosure shall not compromise or waive the attorney-client privilege as to that
communication or otherwise. If you have received this communication in error, please contact me at the Internet
address or telephone number provided.
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