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HomeMy WebLinkAbout20080915 Ver 2_More Info Received_20150212Catherine B. Templeton, Director Promoting and protecting the health of the pubic and the rnvimnv t Public Notice # DHEC 08 -C -001 ,_aop8 0%55 Public Notice Date: January 16, 2015 NOTICE OF DEPARTMENT DECISION — WATER QUALITY CERTIFICATION The SC Department of Health and Environmental Control, acting on an application for Water Quality Certification pursuant to Section 401 of the Federal Clean Water Act, has reached a proposed decision for the project described below: Duke Energy Carolinas LLC Operations of the Catawba Wateree Hydroelectric project Catawba River Various Counties P/N D14EC 08 -C -001 After reviewing the project plans, Department Staff determined that there is a reasonable assurance that the proposed project will be conducted in a manner consistent with the certification requirements of Section 401 of the Federal Clean Water Act. Accordingly, the Department proposes to certify the project with conditions as follows: , 1. The applicant, Duke Energy Carolinas, LLC shall operate the Catawba - Wateree Hydroelectric Project in accordance with the following parts of the Comprehensive Relicensing Agreement dated December 22, 2006 (CRA). The following portions as applicable to South Carolina Developments are hereby incorporated into this 401 Certification by reference. CRA - Resource Agreements 2.0 Reservoir Elevation Agreements (excluding subsection 2.2) 3.0 Recreation Flow Agreements (excluding subsection 3.3) *4.0 Habitat Flow Agreements (included are only the subsections listed here) 4.1 Habitat Flow Amounts and Schedules 6.0 Low Inflow Protocol (LIP) Agreements (excluding subsection 6.6) 7.0 Maintenance and Emergency Protocol (MEP) Agreements 11.0 Species Protection Agreements (included is subsection 11.1 only) 13.0 Water Quality Agreements 15.0 Gaging and Monitoring Agreements (15.1 -15.5 only, 15.6 Groundwater Monitors is excluded) CRA - Appendices: A: Proposed License Articles A -1.0 Reservoir Elevation Articles Reservoir Elevations Spring Reservoir Level Stabilization Program A -2.0 Flow Articles Recreational Flows Minimum Flows Wylie High Inflow Protocol (WHIP) OUTFI CAROLINA DE 9600 Bi OFHEALT SC29201 • Phone. NVIRONMENTALCONTRO • wwtvscdher-gm Flows Supporting Public Water Supply and Industrial Processes Flow and Water Quality Implementation Plan (F WQIP) A -3.0 LIP Article LIP for the Catawba - Wateree Hydroelectric Project A -4.0 MEP Article MEP for the Catawba - Wateree Hydroelectric Project A -5.0 Water Quality Article Water Quality Monitoring Plan (WQMP) A -6.0 Gaging and Monitoring Article Flow and Reservoir Elevation Monitoring Funding for USGS Streamflow Gages C: LIP for the Catawba - Wateree Hydroelectric Project D: MEP for the Catawba - Wateree Hydroelectric Project F: WQMP L: FWQIP *Excluded are all subsections under "4.0 Habitat Flow Agreements " not listed above. 2. The applicant, Duke Energy Carolinas, LLC shall follow the Quality Assurance Project Plan; Revision #0; January 6, 2009 (QAPP) while conducting any and all water quality monitoring for the purpose of maintaining compliance with state water quality standards and meeting requirements of the FERC license. Any changes to the QAPP shall be submitted to the SCDHEC for review and written approval before being implemented. 3. The applicant, Duke Energy Carolinas, LLC shall provide for upstream fish passage and downstream fish passage and protection at the Catawba - Wateree Hydroelectric Project in South Carolina consistent with the United States Fish & Wildlife Service's (USFWS) June 22, 2009 fishway prescription. 4. Duke Energy will provide to the Department, American Rivers and the South Carolina Coastal Conservation League a copy of the annual report documenting flow releases from the Wateree Development occurring between February 15 and May 15 during the preceding calendar year. 5. Ten years after the Flow and Water Quality Implementation Plan (as described in CPA Appendix A) modifications are completed at the Wateree Development, Duke Energy shall consult with the USFWS, the National Marine Fisheries Service, and the South Carolina Department of Natural Resources on proposed license articles for Wateree Spring Stable Flow Periods and Wateree Floodplain Inundation. If Duke Energy and these agencies reach consensus on the wording of proposed license articles, Duke Energy shall: (i) provide notice to all CRA Parties advising them of the proposed license articles and Duke Energy's intent to file them with the FERC; and (ii) file the proposed license articles with the FERC for approval as an amendment to the New License. Duke Energy will provide to the Department, American Rivers and the South Carolina Coastal Conservation League notices of possible New License amendments that it is required to give all parties to the CRA by CRA Sections 4.8.6 and 4.9.2. 6. The applicant, Duke Energy Carolinas, LLC shall take all necessary measures during Catawba - Wateree Hydroelectric Project facility operation and maintenance to prevent fuel, oil, tar, trash, debris and other pollutants from entering the adjacent waters or wetlands. The SC Department of Health and Environmental Control reserves the right to impose additional conditions on this Certification to respond to unforeseen, specific problems that might arise and to take any enforcement action necessary to ensure compliance with State standards. A copy of the staff assessment supporting the proposed decision is enclosed. A copy of plans submitted by the applicant is available for review in the office of the Division of Water Quality, Bureau of Water. Additional information about the technical aspects of this application is available from Rusty Wenerick, the project manager, at 803 - 898 -4266. The final 401 Water Quality Certification will be issued unless there is a timely request for review of the Department Decision based on water quality or water use impacts. The issuance of this Notice of Department Decision represents a final staff decision that may be appealed. Please see the attache ppeal procedures for details. Chuck Hightower, Manager Water Quality Certification and Wetlands Section South Carolina Board of Health and Environmental Control Guide to Board Review Pursuant to S.C. Code Ann. § 44 -1-60 The decision of the South Carolina Department of Health and Environmental Control (Department) becomes the final agency decision fifteen (15) calendar days alter notice of the decision has been mailed to the applicant, permittee, licensee and affected persons who have requested in writing to be notified, unless a written request for final review accompanied by a filing fee in the amount of $100 is filed with Department by the applicant, permittee, licensee or affected person. Applicants, permittees, licensees, and affected parties are encouraged to engage in mediation or settlement discussions during the final review process If the Board declines in writing to schedule a final review conference, the Department's decision becomes the final agency decision and an applicant, permittee, licensee, or affected person may request a contested case hearing before the Administrative Law Court within thirty (30) calendar days alter notice is mailed that the Board declined to hold a final review conference. In matters pertaining to decisions under the South Carolina Mining Act, appeals should be made to the South Carolina Mining Council. 1. Filing of Request for Final Review 1. A written Request for Final Review (RFR) and the required filing fee of one hundred dollars ($100) must be received by Clerk of the Board within fifteen (15) calendar days after notice of the staff decision has been mailed to the applicant, permittee, licensee, or affected persons If the 15" day occurs on a weekend or State holiday, the RFR must be received by the Clerk on the next working day. RFRs will not be accepted after 5.00 p m. 2. RFRs shall be in writing and should include, at a minimum, the following information. • The grounds for amending, modifying, or rescinding the staff decision; • a statement of any significant issues or factors the Board should consider in deciding how to handle the matter, • the relief requested, • a copy of the decision for which review is requested, and • mailing address, email address, if applicable, and phone number(s) at which the requestor can be contacted. 3 RFRs should be filed in person or by marl at the following address: South Carolina Board of Health and Environmental Control Attention: Clerk of the Board 2600 Bull Street Columbia, South Carolina 29201 Alternatively, RFR's may be filed with the Clerk by facsimile (803 - 898 -3393) or by electronic mail (boardelerk rr dhec.se.gov) 4. The filing fee may be paid by cash, check or credit card and must be received by the 15" day. 5. If there is any perceived discrepancy in compliance with this RFR filing procedure, the Clerk should consult with the Chairman or, if the Chairman is unavailable, the Vice- Chairman The Chairman or the Vice - Chairman will determine whether the RFR is timely and properly filed and direct the Clerk to (1) process the RFR for consideration by the Board or (2) return the RFR and filing fee to the requestor with a cover letter explaining why the RFR was not timely or properly filed. Processing an RFR for consideration by the Board shall not be interpreted as a waiver of any claim or defense by the agency in subsequent proceedings concerning the RFR 6. If the RFR will be processed for Board consideration, the Clerk will send an Acknowledgement of RFR to the Requestor and the applicant, permittee, or licensee, if other than the Requestor All personal and financial identifying information will be redacted from the RFR and accompanying documentation before the RFR is released to the Board, Department staff or the public. 7. If an RFR pertains to an emergency order, the Clerk will, upon receipt, immediately provide a copy of the RFR to all Board members. The Chairman, or in his or her absence, the Vice - Chairman shall based on the circumstances, decide whether to refer the RFR to the RFR Committee for expedited review or to decline in writing to schedule a Final Review Conference. If the Chairman or Vice - Chairman determines review by the RFR Committee is appropriate, the Clerk will forward a copy of the RFR to Department staff and Office of General Counsel. A Department response and RFR Committee review will be provided on an expedited schedule defined by the Chairman or Vice- Chairman. 8. The Clerk will email the RFR to staff and Office of General Counsel and request a Department Response within eight (8) working days. Upon receipt of the Department Response, the Clerk will forward the RFR and Department Response to all Board members for review, and all Board members will confirm receipt of the RFR to the Clerk by email If a Board member does not confirm receipt of the RFR within a twenty -four (24) hour period, the Clerk will contact the Board member and confirm receipt. If a Board member believes the RFR should be considered by the RFR Committee, he or she will Rev 2, 05/08/2014 respond to the Clerk's email within forty -eight (48) hours and will request further review. If no Board member requests further review of the RFR within the forty -eight (48) hour period, the Clerk will send a letter by certified mail to the Requestor, with copy by regular mail to the applicant, permittee, or licensee, if not the Requester, stating the Board will not hold a Final Review Conference. Contested case guidance will be included within the letter. NOTE If the time periods described above end on a weekend or Stare holiday, the time is automatically extended to 5 00 p.m on the nest business day 9. If the RFR is to be considered by the RFR Committee, the Clerk will notify the Presiding Member of the RFR Committee and the Chairman that further review is requested by the Board. RFR Committee meetings are open to the public and will be public noticed at least 24 hours in advance. 10. Following RFR Committee or Board consideration of the RFR, if it is determined no Conference will be held, the Clerk will send a letter by certified mail to the Requestor, with copy by regular mail to the applicant, permittee, or licensee, if not the Requestor, stating the Board will not ]told a Conference. Contested case guidance will be included within the letter. 11. Final Review Conference Scheduling 1. If a Conference will be held, the Clerk will send a letter by certified mad to the Requestor, with copy by regular mail to the applicant, permittee, or licensee, if not the Requestor, informing the Requestor of the determination. 2. The Clerk will request Department staff provide the Administrative Record. 3. The Clerk will send Notice of Final Review Conference to the parties at least ten (10) days before the Conference. The Conference will be publically noticed and should: • include the place, date and time of the Conference, • state the presentation times allowed in the Conference; • state evidence may be presented at the Conference; • i f the conference will be held by committee, include a copy of the Chairman's order appointing the committee, and • inform the Requestor of his or her right to request a transcript of the proceedings of the Conference prepared at Requester's expense. 4. If a party requests a transcript of the proceedings of the Conference and agrees to pay all related costs in writing, including costs for the transcript, the Clerk will schedule a court reporter for the Conference. 111. Final Review Conference and Decision 1. The order of presentation in the Conference will, subject to the presiding officer's discretion, be as follows: • Department staff will provide an overview of the staff decision and the applicable law to include [10 minutes]. • Type of decision (permit, enforcement, etc.) and description of the program. • Parties • Description of facilitylsite • Applicable statutes and regulations • Decision and materials relied upon in the administrative record to support the staff decision • Requestor(s) will slate the reasons for protesting the staff decision and may provide evidence to support amending, modifying, or rescinding the staff decision. [15 minutes] NOTE The burden ojproojis on the Regitestor(s) • Rebuttal by Department staff [15 minutes] • Rebuttal by Requestor(s) [10 minutes] Note: Times noted in brackets are for information only and are superseded by times stated in the Notice of Final Review Conference or by the presiding officer. 2. Parties may present evidence during the conference, however, the rules of evidence do not apply. 3. At any lime during the conference, the officers conducting the Conference may request additional information and may question the Requestor, the staff, and anyone else providing information at the Conference. 4. The presiding officer, in his or her sole discretion, may allow additional time for presentations and may impose time limits on the Conference. 5 All Conferences are open to the public. G The officers may deliberate in closed session 7 The officers may announce the decision at the conclusion of the Conference or it may be reserved for consideration. 8 The Clerk will mail the written final agency decision (FAD) to parties within 30 days after the Conference. The written decision must explain the basis for the decision and inform the parties of their right to request a contested case hearing before the Administrative Law Court or in matters pertaining to decisions under the South Carolina Mining Act, to request a hearing before the South Carolina Mining Council.. The FAD will be sent by certified mail, return receipt requested. 9. Communications may also be sent by electronic mail, in addition to the forms stated herein, when electronic mail addresses are provided to the Clerk. The above information is provided as a courtesy; parties are responsible for complying with all applicable legal requirements. 2 Rev 2, 05/08/2014 STAFF ASSESSMENT SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL ( SCDHEC) DIVISION OF WATER QUALITY WATER QUALITY CERTIFICATION AND WETLANDS SECTION Project: Operation of the Catawba- Wateree Hydroelectric Project (the project) Applicant: Duke Energy Carolinas, LLC (the applicant) P/N Number: SCDHEC- 08- C- 001 (Rev) P/N Date: July 30, 2014 P/N Close: August 29, 2014 Section of Applicable Federal Law: (x) Federal Energy Regulatory Commission (FERC) License ( ) Section 10 Permit ( ) Section 404 Permit (x) Section 401 Water Quality Certification (401 Certification) Section of Applicable State Law: (x) Pollution Control Act ( ) Coastal Zone Consistency ( ) Water, Water Resources and Drainage Act Affected Waterbody Names: The Catawba and Wateree Rivers and five (5) reservoirs in South Carolina: 1) Lake Wylie, 2) Fishing Creek Reservoir, 3) Great Falls Reservoir, 4) Cedar Creek (Stumpy Pond) Reservoir, and 5) Lake Wateree. Water Classification of Affected Waterbodies: All affected waterbodies are classified as Fresh Waters. Affected Waterbody Locations: Starting at Lake Wylie on the border with North Carolina in York County and ending at the tailrace and spillway channel of lake Wateree in Kershaw County, South Carolina. Are any of the Affected Waterbodies on the 2012 303(d) List or within Approved TMDLs? (x) Yes ( ) No SCDHEC-08-C-001 (Rev) - - Duke Energy Carolinas, LLC Page I of 9 Table 1. SCDHEC Monitoring Stations in the vicinity of the project included on the 303(d) list. 1 Lake Wylie 1 CW -200 York n1 - i Catawba River ( Fishing Creek Reservoir" :' Fishing Creek Reservoir _ _CW -016 CW - -016F - - CW -057 - York_ ' Chester ^ Chester REC AL AL FC - TN,TP =" PH, TP Fishing -Creek Reservoir = RL -01012 Chester AL CHLPr'" Great Falls Reservoir RL -03332 Chester AL TN, TP, TURBIDITY Great FailsReserVOtr' RL -03458 Chester AL TP, TURBIDITY, - Great Falls Reservoir GreatF-a1lsReservoir- " RL -05414 R1r06429 Chester Chester AL AL TP TP . Great Falls Reservoir RL -08062 Chester AL TN, TP Cedar CreekReservoir, CW -174 Chester AL : TP Cedar Creek Reservoir CW -175 Chester AUREC DO, FC, TN, TP Cedar Creek-Reseryoir RIr01007 Lancaster. AL TP- Cedar Creek Reservoir RL- Chester AL TP Cedar Creek Reservoir, , Cedar Creek Reservoir Cedar CreekReservoir _02319 R 2452 RL -03351 RL -03353 Chester Chester Chester AL AL AL TP CU, TP, TURBIDITY TP,TUBIDTTY - Cedar Creek Reservoir RL -04375 Lancaster AL TP Cedar CreekRe3ervoir • RL -04379 Chester AL TP Cedar Creek Reservoir _ �Cedar Creek _Reservoir RL- 053_91 _ RIL -05416 _ Chester Fairfield AL AL-, TP TP .Vu w -vo4-31 Chester n1 lP Cedar CreekR_ese_rvoir - - -- RL- 0644_3 -- Chester_ AL -- Cedar Creek Reservoir - - -- - RL -08046 - - Chester AL TN, TP -- Cedar- CreekReservotr - - - - -- --'-- RL 09094 —• Fairfield - - - - - -- AL - - _ - TP - i Cedar Creek Rcs ervov - W -033 — - Lan- c-a-s-te--r --- - L - P- - $ cieeHea waters CW -231 - - --- Lancaster - --A- - - - AL -- -- —T- ----- - - - - -- - TP Lake Wateree CL -089 Kershaw AL DO, PH Lake Wateree CW -207 Farrfield ALJFIS_H PH, PCB Lake Wateree CW -208 Fairfield AL PH -1 i Lake Wateree _ __ CW -209 -Kershaw AL, FISH —� PH, PCB I Lake Wateree _ _ RL- 02314_ Kershaw -AL _ - PH TP - -- -I Lake Wateree _- �_ RIr03336 Kershaw_ AL PH; TP I Lake Wateree _ RL -08035 Fairfield _ AL PH, TP Lake Wateree _ Kershaw AL PII, TP - 7 Wateree River below Lake Wateree CW -039 Kershaw FISH - HG SCDHEC -08 -C -001 (Rev) - - Duke Energy Carolinas, LLC Page 2 of 9 *LEGEND . -- -USE: Use suboort impaimneot for aquatic life dnd/or recreational uses. ' -AL: Aquatic Life Use REC: Recreational 'Use (Swimmable) FISH: Fish Consumption (Fishable) CAUSE: Parameters) that resulted in impaired use denoted as follows: CHLA:ChlorophyllA - HG:Mercury TN, TotalNitrogen CU: Copper - PCB: Polychlorinated Biphenyls TP: Total Phosphorus DO: Dissolved Oxygen PH: Hydrogen Ion Concentration, TURBIDITY: Turbidity F.C. Fecal Colifprm Bacteria Changes to Fish Consumption Advisories in the vicinity of the Project since 2008 (year previous application submitted): PCB advisories were added for Lake Wylie, the Catawba River from Lake Wylie to Fishing Creek Reservoir, Fishing Creek Reservoir, Cedar Creek Reservoir, and Lake Wateree; and, PCB was added to the Mercury advisory for the Wateree River from below Lake Waterce to the Congaree River. Background The applicant operates the project (FERC No. 2232), a series of dams regulated by the FERC and subject to relicensing. The existing license for the project was issued in 1958 and expired on August 31, 2008. The applicant applied to the FERC for a New License for the project prior to this on August 29, 2006. The applicant submitted a Comprehensive Relicensing Agreement (CRA), signed by 70 stakeholder organizations, along with their application. The applicant applied to SCDHEC for a 401 Certification for the project on June 5, 2008. SCDHEC issued a "Notice of Department Decision - Water Quality Certification" on May 15, 2009, and then, at the request of American Rivers and the South Carolina Coastal Conservation League (Conservation Organizations), the SCDHEC Board conducted a final review pursuant to S.C. Code Ann. § 44 -1 -60. The Board denied the 401 Certification in a written order issued August 6, 2009. The order stated that "the Notice of Department Decision — Water Quality Certification should be denied based on arguments set forth by the Requestors during the final review conference. The Board finds that the Water Quality Certification as issued does not provide sufficient flow to protect classified uses, the endangered shortnose sturgeon and adequate downstream flow of the Catawba River into South Carolina in order to provide reasonable assurance that certification requirements and water qua] itystandards in the Catawba River in South Carolina will be met." The applicant appealed the Board's order to the South Carolina Administrative Law Court, and the Conservation Organizations and the South Carolina Attorney General (SCAG) intervened. In May, 2010 the SCAG settled its claim against the applicant and was dismissed from the case. Subsequently, on July 8, 2013, the National Marine Fisheries Service (NMFS) issued a final Biological Opinion evaluating the operation of the project as proposed by the applicant in the application tothe FERC for a New License. The document presents NMFS's evaluation and conclusion that the New License is not likely to jeopardize the continued existence of federally endangered shormose sturgeon or Atlantic sturgeon species in the Wateree River. On July 11, 2014, a Settlement Agreement was reached between the conservation organizations, the applicant and SCDHEC resolving the dispute concerning the 401 Certification. SCDHEC -O8 -C -001 (Rev) - - Duke Energy Carolinas, LLC Page 3 of 9 New Application Duke reapplied to SCDHEC for 401 Certification on July 18, 2014. The subject of the new application remains the continued operation of the project. In order to update the application in SCDHEC's file (originally submitted June 5, 2008 as previously mentioned), the applicant submitted the following documents on July 18, 2014 along with their request for 401 Certification: 1. May 5, 2010 Settlement Agreement between Petitioner, Duke Energy Carolinas, LLC, and Intervenor, South Carolina Attorney General. The SC Attorney General attended the SCDHEC Board's final review discussed above and presented information. The above agreement settled all issues raised by the SC Attorney General in the 401 Certification proceeding. 2. December 3, 2010 Settlement Agreement among the State of South Carolina, the State of North Carolina, the applicant, and the Catawba River Water' Supply Project. This agreement resulted in the dismissal of U.S. Supreme Court Case South Carolina v. North Carolina, No 138, Orig. and explicitly supported the CRA, calling for each state to abide by the CRA. 3. July 8, 2013 National Marine Fisheries Service's Final Biological Opinion on the Catawba - Wateree Hydroelectric Project (FERC Project No. P- 2232 -522) These documents supplement die previous 401 Certification application/administrative record. SCDHEC placed the revised application on public notice on July 30, 2014. The public comment period closed August 29, 2014. The public may view or obtain a copy of Duke's 401 Certification application file by contacting DHEC's FOI Center. The FERC docket for the project may be viewed on the FERC's website at htto: / /www ferc.gov, using the "eLibrary" link under the "Documents & Filings" menu tab at the top of the page. Enter the docket number, excluding the last three digits in the docket number field to access documents (i.e. P- 2232). Public Comments A. South Carolina Department of Natural Resources ( SCDNR) Date: August 27, 2014 ( ) Does not object to project provided the applicant adheres to the conditions listed below. (x) No objection. ( ) Objects to the project as proposed (and made recommendations), see discussion in Section VI. ( ) Other. The SCDNR comment letter lists sections and appendices of the CRA that "address relevant and significant aspects of the Water Quality Certification application" and recommended thatall measures included in the 401 Certification be consistent with the CRA. B. Frances Frazier Mixon Date: August 8, 2014 ( ) Does not object to project provided the applicant adheres to the conditions listed below. ( ) Hold in abeyance. (x) Objects to the proposed project, see discussion in Conclusions Section. SCDHEC- 08 -C -00I (Rev) - - Duke Energy Carolinas, LLC Page 4 of 9 ( ) No objection. ( ) Has elected to not conduct an investigation nor provide any comments. The commenter owns property adjacent to Lake Wateree that has occasionally flooded in the past. In addition, the commenters concerns included property taxes and pollution. C. Ronald Becknell Date: August 10, 2014 ( ) Does not object to project provided the applicant adheres to the conditions listed below. ( ) Hold in abeyance. (x) Objects to the proposed project, see discussion in Conclusions Section. ( ) No objection. ( ) Has elected to not conduct an investigation nor provide any comments. The commenter expressed concern over the quantity of tree limbs and mud, etc. that entered Lake Wylie during a storm event from a tributary in the vicinity of Tailrace Marina. The commenter also expressed concern over a history of sewage overflows/spills from the City of Tega Cay. , D. Jayme Bowers Date: August 24, 2014 ( ) Does not object to project provided the applicant adheres to the conditions listed below. ( ) Hold in abeyance. (x) Objects to the proposed project, see discussion in Conclusions Section. " ( ) No objection. ( ) Has elected to not conduct an investigation nor provide any comments. The commenter expressed concerns centered on Lake Wateree including: human health risks for swimmers during the warmest months of the year, frequent flooding upstream of the dam; floating trash deposited on shorelines after high waters; and human health risks associated with fish consumption. The commenter requested that the applicant be required to complete within two years the work on the Lake Wateree dam that was proposed to improve flood management. E. N. S. Jones Date: August 28, 2014 ( ) Does not object to project provided the applicant adheres to the conditions listed below. - ( ) Hold in abeyance. (x) Objects to the proposed project, see discussion in Conclusions Section. ( ) No objection. ' ( ) Has elected to not conduct an investigation nor provide any comments. The commenters concerns centered on discharges from coal ash ponds. Conclusion on Water Quality Impacts and Classified Uses: ' When evaluating the proposed work, the SCDHEC followed procedures for implementing State 401 Certification regulations pursuant to Section 401 of the federal Clean Water Act (33 U.S.C. 1341), and the requirements of South Carolina's Water Quality Certification Regulations (RR61 -101, et. seq., 1976 S.C. Code of Laws, as amended). The supplementary documents, submitted by the applicant in order to update the previous 401 Certification application that SCDHEC had on file, addressed all concerns raised in the SCDHEC Board's denial of the previous application. SCDHEC- 08- C- 001(Rev) -- Duke Energy Carolinas, LLC Page 5 of 9 In response to the public notice of the 401 Certification application, the SCDNR wrote a letter in support of the applicant's request and suggested special conditions to be placed on the 401 Certification. The sections and appendices of the CRA that according to the SCDNR "address relevant and significant aspects of the Water Quality Certification application" have been included as special conditions of the 401 Certification when consistent with the July 11, 2014 Settlement Agreement (between the conservation organizations, the applicant and SCDHEC) and the CRA. The SCDHEC also received several letters from commenters who didn't explicitly object to issuance of 401 Certification, but expressed concern over various issues. Several commenters were concerned with flooding above the Lake Wateree dam; however, note that according to studies included in the FERC license application, the lake has never exceeded the flood easement often feet required on all property adjoining the lake. The CRA also includes proposals for additional resource enhancements in the event of a 50 -year license (CRA Resource Agreement 14), which include installing a bladder dam along the dam's spillway of sufficient height and length to provide approximately 10,000 cubic feet per second flow release capacity with the reservoir at full pond to improve flood management capabilities at Lake Wateree. Also, in the conclusions and recommendations section of the Final Environmental Impact Statement (FEIS), FERC staff recommend installing a bladder dam modification of Wateree dam to improve management of flood events. One commenter expressed a general concern about pollution. As indicated above in Table 1, there are SCDHEC water quality monitoring stations within the project boundary and included on the 2012 303(d) list of impaired waters for South Carolina. As stated previously, the Department is charged by Section 303(d) of the CWA with developing TMDLs for pollutants causing the impairments and will work with local stakeholders to implement pollution control plans, including providing fundingthrough theCWA 319 program for nonpoint source pollution control. The following page gives an overview of SCDHEC's effort to develop a nutrient TMDL for the Lower Catawba River Basin: ligp.// tvww. scdhec.e ov/ HomeAndEnvimnment /Polludon/Clean pproprams /OngoingProjectsUodales/Cata w a/. One commenter expressed concerns about human health risks for swimmers on Lake Wateree during the warmest months of the year and also about human health risks associated with eating fish from Lake Wateree. There are over half a dozen SCDHEC water quality monitoring sites along Lake Wateree and recreational uses are fully supported at all sites; however, two sites are listed for not supporting fish consumption due to PCBs and the lake is under a fish consumption advisory for PCBs. PCBs have been banned and SCDHEC has taken steps, including emergency regulations, to prevent new sources and will continue to monitor fish tissue, post advisories and distribute educational information to the public so they can make informed choices and effectively manage risks. Over time, it is possible that contaminated legacy sediments will be covered by cleaner sediments and levels in fish tissue will drop naturally. The commenter also expressed concern about floating trash deposited on shorelines after high waters. The applicant has historically supported annual voluntary lake shoreline cleanups and posts information on their website. The commenter also requested that the applicant be required to complete within two years the work on the Lake Wateree dam that was proposed to improve flood management. As discussed previously, FERC staff included this as a recommended measure in the staff alternative in the FEIS. One commenter expressed concern over a history of sewage overflows/spills associated with the City ofTega Cay The City recently entered into an agreement to purchase the wastewater utility from a private interest and assume responsibility for wastewater services. The City also entered into a consent agreement with SCDHEC SCDHEC -O8 -C -001 (Rev) - - Duke Energy Carolinas, LLC Page 6 of 9 to ultimately correct all of the deficiencies that resulted in the overflows. Some comments were outside the scope of this review such as property taxes and potential discharges from coal ash ponds (no coal ash ponds are associated with the project), and others had to do with issues beyond the control of the applicant such as tree limbs and mud, etc. washing into reservoirs from tributaries. Producing large woody debris and transporting sediment are natural functions of tributaries. South Carolina has statutes and regulations to control erosion and sedimentation from construction sites. Fluctuating lake levels can also contribute to shoreline erosion and sedimentation, and the applicant has developed shoreline management plans that include guidelines to minimize this problem. The applicant also provides information on shoreline stabilization on their website. There will be no adverse water quality impacts from the proposed project provided the applicant adheres to the conditions listed below. The SCDHEC has reasonable assurance that the water quality standards of Regulation 61 -68 will not be contravened as a result of the proposed work. The proposed activity will result in no significant degradation to the aquatic ecosystem, will enhance existing and classified uses of the Catawba and Wateree Rivers and associated lakes and reservoirs, and is in compliance with the above regulations provided the applicant adheres to the conditions listed below. Information about the technical aspects of this application is available from Rusty Wenerick, the project manager, by calling (803) 8984266 or by e- mailing weneriwr@n dhec.sc.aov. This certification is made subject to the provisions of S.C. Reg. 61 -101 (H). Staff Recommendation: Issue 401 Certification with conditions. Conditions to be Placed on 401 Certification When Issued: I. The applicant, Duke Energy Carolinas, LLC shall operate the Catawba- Wateree Hydroelectric Project in accordance with the following parts of the Comprehensive Relicensing Agreement dated December 22, 2006 (CRA). The following portions as applicable to South Carolina Developments are hereby incorporated into this 401 Certification by reference: CRA - Resource Agreements 2.0 Reservoir Elevation Agreements (excluding subsection 2.2) 3.0 Recreation Flow Agreements (excluding subsection 3.3) '4.0 Habitat Flow Agreements (included are only the subsections listed herel 4.1 Habitat Flow Amounts and Schedules 6.0 Low Inflow Protocol (LIP) Agreements (excluding subsection 6.6) 7.0 Maintenance and Emergency Protocol (MEP) Agreements 11.0 Species Protection Agreements (included is subsection 11.1 only) 13.0 Water Quality Agreements 15.0 Gaging and Monitoring Agreements (15.1 -15.5 only, 15.6 Groundwater Monitors is excluded) CPA - Appendices: A: Proposed License Articles A -1.0 Reservoir Elevation Articles Reservoir Elevations Spring Reservoir Level Stabilization Program A -2.0 Flow Articles SCDHEC -08 -C -001 (Rev) - - Duke Energy Carolinas, LLC Page 7 of 9 Recreational Flows Minimum Flows Wylie High Inflow Protocol (WHIP) Flows Supporting Public Water Supply and Industrial Processes Flow and Water Quality Implementation Plan (F WQIP) A -3.0 LIP Article LIP for the Catawba - Wateree Hydroelectric Project AA.0 MEP Article MEP for the Catawba - Wateree Hydroelectric Project A -5.0 Water Quality Article Water Quality Monitoring Plan (WQMP) A -6.0 Gaging and Monitoring Article Flow and Reservoir Elevation Monitoring Funding for USGS Streamflow Gages C: LIP for the Catawba - Wateree Hydroelectric Project D: MEP for the Catawba - Wateree Hydroelectric Project F: WQMP L: FWQIP 'Excluded are all subsections under "4.0 Habitat Flow Agreements " not listed above. 2. The applicant, Duke Energy Carolinas, LLC shall follow the Quality Assurance Project Plan; Revision 40; January 6, 2009 (QAPP) while conducting any and all water quality monitoring for the purpose of maintaining compliance with stale water quality standards and meeting requirements of the FERC license. Any changes to the QAPP shall be submitted to the SCDHEC for review and written approval before being implemented. 3. The applicant, Duke Energy Carolinas, LLC shall provide for upstream fish passage and downstream Fish passage and protection at the Catawba- Wateree Hydroelectric Project in South Carolina consistent with the United States Fish & Wildlife Service's (USFWS) June 22, 2009 fishway prescription. 4. Duke Energy will provide to the Department, American Rivers and the South Carolina Coastal Conservation League a copy of the annual report documenting flow releases from the Wateree Development occurring between February 15 and May 15 during the preceding calendar year. 5. Ten years after the Flow and Water Quality Implementation Plan (as described in CRA Appendix A) modifications are completed at the Wateree Development, Duke Energy shall consult with the USFWS, the National Marine Fisheries Service, and the South Carolina Department of Natural Resources on proposed license articles for Wateree Spring Stable Flow Periods and Wateree Floodplam Inundation. If Duke Energy and these agencies reach consensus on the wording of proposed license articles, Duke Energy shall: (i) provide notice to all CRA Parties advising them of the proposed license articles and Duke Energy's intent to file them with the FERC; and (ii) file the proposed license articles with the FERC for approval as an amendment to the New License. Duke Energy will provide to the Department, American Rivers and the South Carolina Coastal Conservation League notices of possible New License amendments that it is required to give all parties to the CRA by CRA Sections 4.8.6 and 4.9.2. SCDHEC -08 -C -001 (Rev) - - Duke Energy Carolinas, LLC Page 8 of 9 6. The applicant, Duke Energy Carolinas, LLC shall take all necessary measures during Catawba- Wateree Hydroelectric Project facility operation and maintenance to prevent fuel, oil, tar, trash, debris and other pollutants from entering the adjacent waters or wetlands. Prenared bv: ALA,� Date: 111311.5 SCDHEC- 08- C- 001 (Rev) - - Duke Energy Carolinas, LLC Page 9 of 9