20030179 Ver 6_Public Comments_20061005

PAUL V. NOLAN, Esq.
5515 North 17th Street
Arlington, Virginia 22205
Admitted D.C. Bar
Energy Practice Limited to
State and Federal Agencies
October 5, 2006
Hon. Magalie R. Salas, Secretary
Federal Energy Regulatory Commission
888 First Street, N.E.
Room 1-A
Washington, D.C. 20426
Work: [phone]
Fax: [phone]
Cell: [phone]
E-mail: [e-mail]
Truck: 703-946-8153
RE: Duke Power, a Division of Duke Energy Corporation P-2601-007
(Bryson): P-2602-005 (Dillsboro Dam - Relicensing); P-2602-007
(Dillsboro Dam -Surrender); P-2686-032 (West Fork Tuckasegee); P-
2698-033 (East Fork Tuckasegee); Project No. 2603-012 (Franklin);
Project No. 2619-012 (Mission); and, Project No. 2692-032 (Nantahala)
Submission Regarding Compliance with CWA
Hon. Magalie R. Sa/as:
In furtherance of the Commission's duty to ensure compliance with the
provisions of the Clean Water Act, see City of Tacoma v. FERC, Docket Nos. 05
1054, 051093, 05-1180, 05-1181, F.3rd _, 2006 WL 2411362 (C.A.D.C.)',
copies of letters from the Jackson County Government, North Carolina; the Macon
County Government, North Carolina; the Swain County Government; The Town of
Franklin; and, the Town of Dillsboro are submitted. Each letter requests the convening
of hearings by the NC Division of Water Quality with regard to the processing of water
quality certificates for the pending above-captioned relicensing proceedings.
As of today's date, Jackson, Swain and Macon Counties and Towns of Dillsboro
and Franklin have not received a response from the NC agency. The Town of Dillsboro
did receive a response from the purported current licensee and as a result sent a letter
withdrawing its hearing request.2 The explanation of the circumstances surrounding the
Town's action is documented in the attached newspaper article. Please note the
article's reporting of the Town being under duress in the execution of the TCST
' A copy of the decision is available on FERC's website -
www.ferc.gov/lega/courtcases/opinions.
See Attached June 26, 2006 letter regrading legal status of current licensee.

agreement, which serves as the basis of the EAs and the issuance of any and all
certificates for the above-captioned projects and especially that for the Dillsboro license
surrender proceeding.
A copy of the Town's letter withdrawing its hearing request is attached.
As to the repeated scenario of withdrawing and resubmitting water quality
certificates, please be advised that no public notices of applications' resubmission, etc.,
have been received by the Jackson County, Swain County and Macon County
Governments.
Respectfully submitted.
Digitally signed by Paul V. Nolan
y~ P a u I V. N O I a n ema 1=p np [e-mail]-US,
Location: Arlington, VA
Date: 2006.10.05 15:49:47 -04'00'
Paul V. Nolan, Esq.
Certificate of Service
I hereby certify that I have this day served the foregoing document on the parties
designated on the official service lists compiled by the Secretary in these proceedings.
Dated this 5th day of October 2006.
Digitally signed by Paul V. Nolan
By: DN: cn=Paul V. Nolan, c=US,
P a u I V. N O l a n email=[e-mail]
Location: Arlington, VA
Date: 2006.10.05 15:50:03 -04'00'
Paul V. Nolan, Esq.
Attorney for the Jackson County Government
th
5515 17 Street North
Arlington VA 22205
Tel: [phone]
Email: pvn vn(c~aol.com

Fish and Vt~ildlife Associates, Inc.
Main Office at: p, Q, gpx 241 Tel [phone]
25 Water Tower Lane Whittier, NC 28789 Fax [phone]
Whittier, NC 28789 Email [e-mail]
August 2b, 2006
Honorable Charles H. Taylor
NC 1 l~' District Congressman
Attn: Martha Peterson
231 Cannon House Office Building
Washington, DC 20515-3311
RE: Duke Power Relicensing (Project No. 2602-005 Dillsboro Dam Relicensing; Project
No. 2686-032 West Fork Tuckasegee; Project No. 2698-033 East Fork Tuckasegee;
Project No: 2603-012 Franklin; Project No. 2601-007; Bryson; Project No. 2692-032
Nantahala; Project No. 2619-012 Mission)
Dear Congressman Taylor:
Enclosed aze copies of letters that Tackson and Macon. Counties, as well as the Town of
Dillsboro sent to the NC Division of Water Quality requesting public meetings and a
ct~mplete review of each of the above referenced projects before a Section 401 water
quality certificate in issued.
Thank you for your assistaace in this matter and if you need addition information, please
contact me.
Sincerely,
~~
ohn L. Booze, ~~~~
Senior Biologist
cc-Senator Richard Burr
Senator Elizabeth Dole

OS/29/06 TNU 11:20 FA ]; S28 349 2400 M,4C!71 c';'i
~JOU1
'w ;
r'~c -
,'I ,~ ~r
~ J
~~ ~~'d ~ ~~~~~.~ %
August Z4, 2UUL,
Mr•. Joh_n Domey
NC Di~~, of Water Quality -
2321 Crabtree Blvd.
Raleigh, NC 27604 -
RE: Application for 401 Water Qualify Cenification-Duke Power Relice;nsing (Project
No. 2fi02-005 Dillsboro Dam Pclicensing; Project 1Vo. 268ti-032 Wcst 1~orl: Tuckasegee;
Project No. 2698-033 Easl Fork.Tuckasegce; Project No. 2bU3~012 Franklin; Project No,
2601-{~07; Bryson; Project No. 2692-032 Nantahala; Project No. 2~ 19-012 Mission.)
Dear Mr. Domey:
We untierstand.that'Drike;Ener~y has withdrawn and re-submitted an application for 401
Water Quality C.'.ertifioaton for the above referenced prpjects. Wc,feel~;that~this is a
controversial action that affects alI the citizens' o.f Macon County.: 't'here ore, prior. io
your agency taking any action of this request, apublic meeting should be held to allow
the people of this County to express their views about these projects:
As you know; Duke Energy does not plan to carry out any naeaniii~ful miti ation
.. ~ mcasures'in exchange for'the operation of Lake Emory Hydro Project in.I~laeon County.
' We feel that this is not in the best interest of the citizerZS of this County and therefore,
request that no action be taken on this 4U1 Certification unto such time as.j~ublic meeting
~: can beheld in Franklin; NC.
Sinccreiy, ..~
~~! ,"-- ,
,l
Alan Br
}son, Chaim~an
1\~lacon County Board of Commissioner..
CC- l~c'1)1'eStiliCtti\ c Rrl~'el~ \.j~~SI
Scnata! _Iiillll tillOi\'

~_~/25'~i~t~6 1'x:35 58E,75'~u
!='~~~E E~1
OFFICE oz~
COMMISSIONERS OF JACKS~rt COCrNTY
$OARD OF C+UMMISSIONERS
BRIAN THOMAS McMAi-1AN, C~eirman
R06ERTA C:RAWFORD, Vke Chaitmsn
JaE COWAN, t:ommissioner
EDDIE MADDEN, Corattnissiona
CONRAD $URRELL, Commitsionet
KENNETH L. WESTMORELAIv'D, Counry Manat~r
601 GRTNDSTAFF COVE ROAD
SYLVA, NOR'I`N CAROLINA 28779
[phone]
FAX (82R) 631.2208
F.-M.eil: Ja~[e-mail]
August 25, 2006
Mr. Yohn Doruey
NC Dvisiop, pf Water Quality
2321 Crabtree Blvd.
Raleigh, NC 27604
lt.e: Application for 401 Water Quality C ertification•Duke Power
Reliceosing (Project No, 2602-005 Dillsboxo l7atn Relicensing;
Project No. 2686-032 West Fork Tu~skasegee; l'rojeet No.
2698-033 East Fork Tuckasegee; Project No. 2603-012 Franklin;
Project Na. 2601-007; ~3ryson; Project Na. 2692-032 Nantnhala;
Pxbject No. 2619012 Mission)
Dear .Mr. Dorney:
We understand that Duke Energy has withdrawn and re-submitted an application for 401
Watet' Quality Certification for the above referenced projects. ~Je feel that tla.is is a controversial
action. that affects all the citizens of Jackson Caunty. Thereforf:, prior to your agency taking any
action on this request, we suggest that a public meeting be held to allow the people of this county
to express their views about these projects.
As you know, Duke Energy dyes not plan to carry out aty meanizxgful mitigation
rneasu>,~es in exehaczge for the decommissioning of the Dillsborc Dam in Jackson Couxxty. We
Feel that this is not ix>, the best interest of the citizens of this cow>ty and therefore, request that no
actiota be taken an this 401 Certification until such time as pubk.a meeting can be beld in Sylva.
S' cerely, /
%~'YK.t~' ~e~~
Brian Thomas McMahan, Chaixn~an.
cc: lZepr~sentative Phil Hdre
Senator John Szlow
AN irquA.[. orPO.RTUNITY / AFFIR.I2A'rlVl; ACT[JN F.M3'l.OYER

10~E74/2806 16:46 828497621 FISH & WILDLIFE „___, _„ __PAGE 01
©8-3l~-'~16 ]2:46 FRUM-Sa~ain C•o Arl~nin
BCiard at Ctbmt»issioeters
Glenn .~bnas, Gt1Air
Gene~iave `~dsey, Vice-Chs~~
David teith, Mert~ber
David An~Qny, Member
sewn Watd~up, Msrnber
3fl, 2006
82~~882759
Swain County
J,ip2 MitcFialf S~trtd
,P.O. Sox 2321
Biysvn City, NC ZS 713
Mr, ehn Dorrcy
NC ivisivn of Water Quality ••
2321 Crab~ee HottJlevard
Bale gh, NC 27644
r~~~7~ ~ao~~0r~z >;-~P~
Couetty Mana~r
Kev~ S. Kiny
7elepilane_ (878 488.9273
[phone]
Fax: [phone]
mansQerC+~swai+tiaounry.org
Re: SA.pplicatioin for 401 SlVatez Quality Certification-Uttlce 'Power Relieensing {Project
No. 21602.4US Dillsbo>ro Dam Rei£ce~oising; Pxaject Na. 2686-032 West Fvrk Tuelcase~tee;
Prajdct No. 2b98~033 Ease Fork 'htcka4eaee; Project Nn. 2503-012 Fcazrdclin; Project No.
2602-007; Bryson; Project No. 2i5~2-832 Nantal~ala; Proje+~ No. 26f 9.012 3vlissiou)
~ .
Dear KVir, Uorney;
We ~tder~stand that Duke E.ncrgy hau withdrawn and ttrsu'~mittcd as application for 401
Watelrr Quality Ccrtificatiott ~'or tlxe above referenced pmi~:ts. WE feol that this is a
contxbversiai action that affects all tl~e citizens of Swain C~>unty. Therefore, prior to your
agen~Y ~~$ ~Y action of this roquoat, a puhGc meetiag ;should be held to allow the
people of this County to express t1-eir views about these projects.
As y~u know, Duke Energy does .not plan to cariry oat any meaningful mitigation
ttteasiKres in exchange for the operation of The Bryson l~d-v Pt+oject in Swain County.
WE $i*el that this is not in the bast intexest of the citizetss o' ~ this County and therelfvr~c;
tequel~t that no action be taken an t}iis 401 Certification until such time as a public
meeting can be held in Brysan Ciry, North Carolina,
Si
7arfe~Chairman
County Commissioners
0
Gc: )~epresent$tive Phil Haire
Bator John Snow

3.: F';~GE E~1
BOARD MEMBERS:
~°
o~ aaz~,zs,~o
~o
JEAN HART6ARGER
MAYOR
JOHN FAUIK
JfM 17tJt<ES
JIM CAGE
BUD SMrni
"Heart of Great Smokies Vacatlonfand"
August 25, 2006
Mr. John Do,rney
NC Div. 4f Water Quality
2321.. Crabtree Blvd
Raleigh NC 27604
RE: Application for 401 Water Quality Certification-Duke Power Relicensing (Project
No. 2602-005 Dilisboro Dam Retioeneing; Project No. 26$6-032 GVest Bork Tuckasegee;
Frvject Nv. 2698-0331vast ]~ork ?~ckasegee; Project No 2603-01:? Franklin; Project No.
2b01 »007; Hryson; Project No. 2692-032 Nantehala; Project No.:!619-012 Mission}
Dear Mr. Doroey:
MIKE FITZGERALD
VICE MAYOR
HERBERT NOl.AN
TOWN CLERK
We understand that Duke Energy has withdrawn and re-submittec: an application fox 401 Water
Quality Certification fox tlZe above referenced projects. We feel that this is a controversial. action
that affects all tole citizens of Dillsboro and. Jackson County. The, ~efore, prior to your agency
taking any action of this request, a public meeting should be held to allow the people of this
Town to express their views about these projects. As recently ns . iune 2006 nearly all of the
business owners in the Towm of Dillsboro signed a petition opposing the removal of the
Dillsboxo Dam.
As you know, Duke Energy plans to carry out questionable uutigt,tion measures in exchange .far
the operation of the East and West Fork .l~ydx^oelectric Proj~t ane the removal of the l)illsbora
Dam in Jackson County. We feel that this is not in the best intere ;;t of the citizens of the Town of
Dillsboro and therefore, request that no action be taken on this 40l Certificatian until such time
as public meeting can be held in Sylva, NC.
Sincerely,
Mayor
Town of Dillsbam
cc: John Snow, Senator
Phi] Haire, Representative
P.Q. Box 1488 Qillsboro, North Carolina 28725 Phone: [phone] Fax: [phone]°

Oct,'S, 2006 1:56PM
CG
,a~ .~r~~.~.X~x~
iaa westMain Street
North Carolina 28734
(828) 524-251.6
August 29, 2046
1vlr. John Dorney
NC Division of Water Quality
7.,32.1 ('.rabrree Blvd.
lZalei.t;11, NG 27604
No•64I's P• 2
Rl~.; Application for 401 Water Quality Certific:atir>n-nuke Power n.elacensing (Project
No. Z6U2-(H)S llillsboro llam Kelicensin6; Project No. 2686-032 West Fork Tuckasegee;
Arnjeet Na. 2b98-U33 E;asi Fork 7'uekasegee; Project No. 2603-012 rranl~lin; project No.
2~ct1-OA7~ Rry4cm; Prajpc;t Nn, 2.692•()3? Nantahala; I'roiecr Ne. 2.61 ~)-011 tvlissian)
llear Nlr. llorney:
~~ We understand il~al T3ukz F,nergy has withdrawn and re-submitted an application fqr 4U1
Water Quality Certification for itr.e ahnrre referenced projects. Wc~ feel thal this is a
controversial action that affects ail the citirens ul' F'rankiin, There#'ore, prior to your
agency taping any action on this request, a public meetinl; should. be held to aitow the
people of Franklin anal .Macron County to express their views about these prgjccts,
As yvu know, llukc lnergy dots not ptaaa to carry out any aneaning:f'u] mitigation
measures in exchange for ih~c operation of the Labe .Rmory I~Iyciro Project in the Town of
Franllin and Macon County, We feel that this is not in the best interest of the citizens of
the town and county and, therefore, request that no action be taken on this 401
Cortificati~n until such time as a public meeting can be held in Franklin.
Sincerely,
lJ~~"
,i G~llinti
M or
CC: lranklin Board of Aldormctt
The Honorable John Snow
} Th.e Honorable Roger West
,;

~P-11-20E1E~ ll~:c'Sa F'FtQM:0I~~580Rd
~oQ`~
Mr. John Domey
NC Division of Water Quality
2321 Crabtree Blvd.
Raleigh, NC 27504
Dear Mr. Domey:
r-~~~E Fil
?`~' h31 #535 T0: 6312Ci~E-~ F. ~'~
1 must ask for a retrecGon of the request letter dated August :t5, 2006 regarding Duke
Power's re-submitted application for Water Quality Certificg.tion for the Duke relicensing
of their projects.
Further consideration of the opportunities given For citizen input on these various projects
appears to have been ample during previous public hearings, one as late as June of this
year in Jackson Coupty wnducted by FERC,
Sincerely,
Jean i~Tartbarger,
Mayor

The Smoky Mountain News Page 1 of 4
week of 9/13/06
kpmg Duke convinces Dillsboro to 'retract' letter
By Sarah Kucharski • Staff Writer
arts + Events - ----------- ---
OUtfIoOrS Dillsboro Mayor Jean Hartbarger has retracted a letter that could have led to

Qpiiniun a legal squabble with Duke Power.
' Qn ~a mpUS Hartbarger had signed a letter requesting that the N.C. Division of Water
Quality hold a public hearing prior to re-issuing Duke Power water quality
w~~ Celend~f certifications for its dams on the Tuckasegee River. After Duke officials
claimed that authoring the letter violated the rules of the original stakeholder
IVIQCli1taifl Y$ICeS agreement the town signed as part of the re-licensing process, Hartbarger
asked for the letter back from the state.
Reading Roorn
"Because of that unique status, their efforts were not in keeping with that
Public Afla~irs agreement," said Duke Power representative Fred Alexander. "When that was
pointed out to them, they retracted the letter."
area atir~ctions
Duke Power must obtain water quality certification in order to continue
~18$~lf~Bd~ ~~4~, ~~ operating the company's hydroelectric projects on regional waterways.
• ` - r n However, water certifications normally would not be approved until the
VV~b ~Ir$~tOf1,F ;, Federal Energy Regulatory Commission issued a license for the hydro
_ ` "`"
- _~ £ projects' operation, Alexander said.
R~ginhal ~MBif
~ =
9$gr~h Q~'CfI@~ An application for a water quality certification has aone-year shelf life.

f
~ Consequently, Duke Power has had to re-apply for certification each year
;~ ', ~ ~± '
_~•
Subscri6p• while the region has rehashed and attempted to renegotiate the terms of the
~ , original settlement agreement reached three years ago. Each prior
+ .'
~>4lI~
Apout
i :`
• application has not had any outside opposition, Alexander said.
,
~
k~z~' ~w.~~.~
~p'J1taC $MN Now, it appears as though the calls for a public hearing may be a last-ditch
rr• i,
: effort by opponents to go on record before the FERC commissioners make
j
1:98db$C~C . their final ruling on the region's mitigation package and the terms of Duke's
.~ ~ deg _ '~ relicensing.
~~YU n lead ad ~~~~~'
- '' Duke Power has seven dams on the Tuckasegee River in Jackson County as
well as dams on the Nantahala, Oconaluftee and Little Tennessee rivers. The
settlement agreement determines what the public gets in exchange for Duke
damming and diverting local rivers. Such agreements are negotiated at most
every 30 to 40 years, meaning their terms have long-term recreational,
economical and environmental impacts.
Jackson and Macon county officials, amongst others, have criticized the
original stakeholders' agreement for offering inadequate compensation to the
region. One of the issues at the core of the dispute over the original
stakeholders' agreement has been the removal of the Dillsboro Dam, which
many town residents say is a cultural landmark.
The dam has not operated effectively since the floods of 2004 when, literally,
a ton of silt collected behind it. If the dam were removed according to Duke's
plan, the silt would be released downstream potentially damaging river
ecology.
An alternative to the original stakeholders' agreement, authored largely by
http://www.smokymountainnews.com/issues/09 06/09 13 06/fr duke convinces.html 9/19/2006

The Smoky Mountain News
Page 2 of 4
Jackson County Manager Westmoreland in cooperation with the county's
contracted hydropower attorney Paul Nolan, would turn the dam over to the
county to run. The dam most likely would be paired with the county's
methane gas recovery project located at the old landfill just outside Dillsboro
to help turn the town into a model for green power.
However, the final environmental assessment produced by FERC staff - a
document summarizing potential impacts on the region and advising
mitigation action -heavily favored Duke Power and the original settlement
agreement, recommending removal of the Dillsboro Dam.
Mayor Hartbarger told Dillsboro town board members Monday night (Sept.
11) that her decision to author the letter requesting a public hearing prior to
re-issuance of Duke Power's water quality certifications came as a result of a
meeting she attended with Rep. Charles Taylor, R-Brevard, and Sen. Richard
Burr, R-N.C., just prior to the final environmental assessment's release.
Hartbarger said that she was asked to send the letter along with other local
representatives. The letter is a form letter slightly modified for each of the
signing parties, which also included Glenn Jones, chairman of the Swain
County commissioners, Alan Bryson, chairman of the Macon County
commissioners, and Brian McMahan, chairman of the Jackson County
commissioners.
"We understand that Duke Energy has withdrawn and re-submitted an
application for 401 Water Quality Certification for the above referenced
projects," the letter reads. "We feel that this is a controversial action that
affects all the citizens of (Swain County/Macon County/Jackson
County/Dillsboro and Jackson County). Therefore, prior to your agency taking
any action of this request, a public meeting should be held to allow the
people of this (County/Town) to express their views about these projects."
However, the letter Hartbarger signed included slightly different wording from
other letters. Where Swain, Macon and Jackson's letters read "Duke Energy
does not plan to carry out any meaningful mitigation measures," Dillsboro's
says "Duke Energy plans to carry out questionable mitigation measures."
Also, the Dillsboro letter included an extra line when requesting the public
hearing. "As recently as June 2006 nearly all of the business owners in the
Town of Dillsboro signed a petition opposing the removal of the Dillsboro
Dam," the letter's first paragraph reads.
Dillsboro business owners as a collective entity did not sign the original
stakeholders agreement and thereby are free of encumbrances and may
criticize the mitigation proposal at will without running the risk of legal action.
Though as with many small towns - Dillsboro's population is slightly more
than 200 residents -roles often overlap. Hartbarger signed the petition
opposing dam removal not as mayor, but as owner of the Jarrett House
restaurant.
Hartbarger has said that the town's decision to sign the agreement was under
duress, as the town saw no way to push for more mitigation. The board met
and voted to sign the agreement on the condition that they rank their
approval of the agreement at a four on the scale of one to five -one
represented total approval and five noted grave concerns with the
agreement. It wasn't until after the board vote that Hartbarger arrived to
sign the document and found out that several other parties at the negotiating
table including Jackson County weren't going to sign.
However, Hartbarger's request to the N.C. Division of Water Quality for a
public hearing was sent without town board approval. Just prior to Monday
http://www.smokymountainnews.com/issues/09 06/09 13 06/fr duke convinces.html 9/19/2006

The Smoky Mountain News
Page 3 of 4
night's meeting, board members questioned about the letters -the request
and the subsequent retraction -had no knowledge of either.
"I have no idea what you're talking about," said town board member Bud
Smith.
The meeting local officials had with Taylor and Burr was held in July, and the
letter requesting the public hearing was dated Aug. 25. Dillsboro town
officials did not have a meeting in August due to several board members
being gone.
Hartbarger waited until the very end of the town board meeting Monday night
to bring up the issue, explaining that she had sent the letter, found out it was
a violation of the terms of the original settlement agreement, and asked for
the letter's retraction.
"So it's all taken care of now," Hartbarger said.
Board members did not seem upset by the mayor's decision to take action
without board approval. Rather, they seemed in support of Hartbarger's fight
for the town's interests.
"We all appreciate a mayor who is willing to take a risk from time to time,"
said board member Mike Fitzgerald.
Board member Jimmy Cabe said that a little opposition wasn't a bad thing, as
the town wasn't in Duke's pocket.
"I don't see that they wrote us a check or nothing," Cabe said.
"Well, they did," Hartbarger replied.
Duke gave Dillsboro $50,000 to be used for the town's Monteith property
development, which will is planned to include a park, parking area,
community theater and historical museum.
"I don't want the money, I want to keep the dam," Hartbarger said.
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http://www.smokymountainnews.com/issues/09_06/09_13_06/fr_duke_convinces.html 9/ 19/2006

Unofficial FERC-Generated PDF of 20060703-0164 Issued by FERC OSEC 06/26/2006 in Docket: P-2601-000
FEDERAL ENERGY REGUIJ-TORY SON
WASHINGTON, D.C. 20426
OFFICE OF ENERGY PROJECTS
Project Nos.: P-2601, 2602, 2603, 2619,
268b, 2692, 2694, 2698, 2232, 2331,
2332, 2503 and 274U-North Carolina
Duke Energy Ccnporatian
Mr. John A. Whitaker, rv, Esq. J V NL b
Winston & Strewn LLP
1700 K Street, N.W.
Washington, D.C. 20006-3817
Re: Name change for Duke Energy Corporation
Dear Mr. Whitaker.
.'
. ;, '' This refers to your letter filed Apri15, 2006, notifying the Commission of a change in
;', ~' the name of the licensee for the subject projxts firnn Duke Energy Corporation (Deice
' Corporation) to Duke Power Company LLC {Duke LLC). Your letter states that the name
change became effective Apri13, 2006, the date that the merger of Duke Energy Corporation
and Cinergy Corporation closed. Your letter states that, as part of the merger approval by the
Commission at 113 FERC ¶ 61,297 (2005}, Duke Corporation converted to Duke LLC under
North Carolina law.
Transactions that result in a new, separate legal entity holding a license require prior
Commission approval under section 8 of the Federal Power Act {FPA} for the resulting
transfer of the license to the new, separate entity, and not simply notification to the
Commission of a name change. See, eg., Great Northern Paper Company, 50 FERC
~ 61,163 at p. 61,474 (1990}, where the Commission denied a request for a purported name
change resrrltirrg from a corporate merger and required more evidence to determine whether
the resulting corporation was the same corporate entity as the original licensee.
You contend that the conversion of Duke Corporation to Duke LLC did not result in a
new, separate Iegal entity bolding the subject licenses. To support your contention, your letter
states that under N.C. Gen. Stet. § SS-11A-13 {"Effects of Conversion" of a corporation} and
§ 57C-9A-04 ("Effects of Conversion" to a limited liability company), the conversion did not
result in Duke Corporation dissolving or terminating, but rather continuing to exist as the
resulting limited liability company, Duke LLC, and with title to all veal estate and other

Unofficial FERC-Generated PDF of 20060703-0164 Issued by FERC OSEC 06/26/2006 in Docket: P-2601-000
Project Nos. 2601, et al 2
property held by Duke Corporation continuing to be vested in Duke LLC, without reversion
or impairment.
However, the North Carolina statutes you cite do not obviate the applicability of the
license transfer provisions of FPA section 8 to the change in legal entities that resulted from
the conversion of Duke Corporation to Duke LLC. N. C. Gen. Stat. § 57C-9A-04, cited in
your letter, applies to a conversion to a limited liability company of a "business entity," which
is defined in N.C. Gen. Stet. § 57C-1-03 (3a) to include a corporation, a limited partnership,
or a general partnership. Corporations, limited partnerships, and partnerships are manifestly
different legal entities than linrited liability companies. They are not aaly different in
organizational and management structure but also in the type and substance of the state-issued
documents that create them and authorize the scope of their operating authority.
Also, N.C. Gen. Staff. § SS-11A-13, cited in your letter, applies to conversions of a
corlxxaation to a "business entity," and the above-cited definition of that term in N.C. Gen.
Stat. § 57C-1-03 (3a), supra, includes a "foreign limited partnership," which is defined in
N.C. Gen. Stat. § 57C-1-03 {9), by reference to N.C. Gen. Stet. § 59-102{5)) as:
a partnership formed under the laws of arty state, province,
country, or other jurisdiction other than this State and having as
partners one or more general partners and one or more limited
partners.... [Emphasis added]
Under the foregoing definition, abusiness-entity conversion under N.C. Gen. Stat. § 55-11 A-
13 could t~esult in a North Carolina corporate licensee continuing in existence as a limited
partriership from a foreign nation. However, since FPA section 4(e) requires licensees to be
United States business entities, the resulting limited partnership would rat qualify as a
licensee. The foregoing analysis does act directly apply to the conversion of Duke
Corporation to Duke LLC, but it does point up the fact that the North Carolina stahrtes you
cite and the license transfer previsions of section 8 of the FPA have different purposes and
apply differently to business-entity conversions.
The requirement of FPA section 8 for approval of transactions that result in a new
entity holding a license is designed to ensure that the Commission has jurisdiction over the
entity that holds the license and that the entity holding the license is qualified under the
requirements of the FPA to be a licensee. Notwithstandingthe North Carolina statutes cited
in your letter, Duke LLC is a different legal entity than Duke Corporation for the purposes of
Commission approval of Duke LLC as the licensee for the subject projects.
Your letter cites the staff order in ilSGen New England, Inc., et al., 86 FERC ¶ 62,088
(1999), which accepted as a mere name change a conversion of a corporation to a limited
liability company. However, the order did not analyze the conversion transaction under the
requirements of section 8 of the FPA, and in any event, a staff order is not binding precedent.

Unofficial FERC-Generated PDF of 20060703-0164 Issued by FERC OSEC 06/26/2006 in Docket: P-2601-000
Project Nos. 2601, et al 3
Also, the Commission's order approving the merger of Duke Energy Corponition and
Cinergy Corporation (113 FERC ¶ 61,297 (2005)) simply noted that Duke Corporation would
be renamed Duke LLC, and the order did not analyze or approve the conversion transaction
under section 8 of the FPA..
Accordingly, within 30 days following the issuance date of this letter, Duke
Corporation and Duke LLC are required to file an appropriate transfer application under
section 8 of the FPA and 18 C.F.R. Part 9 (2005) for the license transfers resulting fmm the
conversion of Duke Corporation to Duke LLC.
If you have any questions, please contact Etta Foster at [phone].
Sincer+eiy,
William Guey--Lee
Division of Hydropower Administration
and Compliance