20080915 Ver 2_Final Accord Document_5_14_08_20150507

SANTEE RIVER BASIN ACCORD FOR DIADROMOUS FISH PROTECTION,
RESTORATION, AND ENHANCEMENT
General
The Santee River Basin Accord ( "Accord ") is a collaborative approach among utilities with
licensed hydroelectric projects, and federal and state resource agencies to address diadromous
fish protection, restoration, and enhancement in the Santee River Basin ( "Basin "). This Accord
supports the Santee - Cooper Basin Diadromous Fish Passage Restoration Plan (200 1) which was
developed by the South Carolina Department of Natural Resources ( "SCDNR "), the National
Oceanic and Atmospheric Administration's National Marine Fisheries Service ( "NMFS "), and
the United States Fish and Wildlife Service ( "USFWS "), and was accepted as a Comprehensive
Plan by the Federal Energy Regulatory Commission ( "FERC ") as noted in the FERC's letter to
the USFWS dated October 3, 2001.
Accord participants and hydroelectric projects (referred to herein singularly as "Project" and
together as "Projects ") that are the subject of this Accord include South Carolina Electric & Gas
Company ( "SCE &G "), licensee of the Saluda Hydroelectric Project No. 516, the Parr
Hydroelectric Project No. 1894, and the Neal Shoals Hydroelectric Project No. 2315, and Duke
Energy Carolinas, LLC ( "Duke "), licensee of the Catawba - Wateree Hydroelectric Project No.
2232, the Ninety -Nine Islands Hydroelectric Project No. 2331, and the Gaston Shoals
Hydroelectric Project No. 2332 (SCE &G and Duke referred to herein singularly as "Utility" and
together as "Utilities ") and their successors; and the SCDNR, the North Carolina Wildlife
Resources Commission ( "NCWRC "), and the USFWS (referred to herein singularly as "Agency"
and together as "Agencies ") and their successors. Singularly, any Utility or Agency that signs
this Accord may be referred to herein as "Party ". Collectively, the Utilities and Agencies that
sign this Accord constitute the Cooperative Accord Partnership ( "CAP" or "Parties "). The
NMFS and the South Carolina Department of Health and Environmental Control ( "SCDHEC ")
were also involved in the development of this Accord, but neither are currently signatories to the
Accord and are therefore not CAP members. Future CAP members, if any, will be limited to
federal and state resource agencies with authority for any diadromous fish species and their
habitats in the Basin, and to owners of other FERC - licensed hydroelectric projects in the Basin.
Non - governmental organizations and the general public will not be members of the CAP, but
may participate via consultation with CAP members and may attend CAP meetings in a non-
decision- making role. However, all discussions by non -CAP members in CAP meetings will be
limited to a short public comment period (to include submission of written comments, if desired)
at the start of a meeting, unless the CAP agrees by consensus on a case -by -case basis to do
otherwise.
This Accord constitutes an agreement among the CAP members for the protection, restoration,
and enhancement of diadromous fish in the Basin through implementation of a 10 -year Action
Plan ( "Plan ") that was initially developed by the USFWS (Cooperative Accord 10 -Year Action
Plan For The Restoration and Enhancement of Diadromous Fish In The Santee Basin —original
draft dated January 24, 2007), and that includes no- sooner -than dates and biological triggers for
fish passage as specified in this document. Tasks and cost estimates for each activity in the Plan
are shown in Appendix A, and no- sooner -than dates, biological triggers, and other agreed -upon
actions are noted in Appendix B. The agreements, activities, and biological studies identified in
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Final Administrative and Policy Document 1 April 9, 2008

the Accord, and in Appendices A, B, and C which are hereby incorporated by reference, will be
used to support the development of fish passage prescriptions that will protect, restore, and
enhance diadromous fish species in the Basin and will be filed with the FERC for inclusion in
the new licenses for some of the above - referenced Projects. The CAP members have worked to
create this Accord to meet the interests of CAP members while still allowing all Agencies and
Jurisdictional Bodies to meet their respective statutory obligations for diadromous fish under §7
of the Endangered Species Act ( "ESA ") and under §4(e), § 10(a), § 100), and § 18 of the Federal
Power Act ( "FPA "), and under §401 of the Clean Water Act ( "CWA "), for the above - referenced
Projects. The CAP has agreed to implement phased, deliberate, and effective activities that will
initiate diadromous fish population enhancements in the near -term while collecting data and
monitoring diadromous fisheries over a longer period for optimizing further restoration efforts.
Definitions
Consensus —a vote with no dissenting votes; abstention by a member is not a dissenting vote.
Jurisdictional Body —any governmental body, except Agencies, which has the authority to bind
the Utilities by imposing requirements affecting the operation of the Projects that are the subject
of the Accord.
Existing Proiect License —the hydropower license that as of the effective date of this Accord has
been issued by the FERC for Projects No. 1894, No. 2315, No. 2331, and No. 2332 but does not
include subsequent or renewed licenses, or their terms, even if some or all of the terms of a
subsequent or renewed license are identical to terms in an Existing Project License.
Inconsistent Act —(A) any requirement, condition, prescription, or recommendation imposed by
a Jurisdictional Body pursuant to § §4(e), 10(a), 100), or 18 of the FPA, §7 of the ESA, or §401
of the CWA for operation of a Project that materially varies any obligation concerning the
restoration of diadromous fish, reservoir elevation limitations, required flow releases, and low
inflow protocols or high inflow protocols from those set forth in the Catawba - Wateree
Comprehensive Relicensing Agreement (CRA), as amended on December 29, 2006, or in an
Existing Project License; or (B) any requirement, condition, prescription, or recommendation
imposed by a Jurisdictional Body pursuant to § §4(e), 10(a), 100), or 18 of the FPA, §7 of the
ESA, or §401 of the CWA that materially varies any obligation from those set forth in this
Accord.
Breach —a failure of a Party to comply with the terms of the Accord in a significant and non-
trivial manner and includes, but is not limited to: (A) a requirement, condition, prescription, or
recommendation for a Project that is imposed by an Agency pursuant to § §4(e), 10(a), 100), or
18 of the FPA, or §7 of the ESA that materially varies any obligation set forth in this Accord; or
(B) any CAP member's requesting, promoting, or supporting an Inconsistent Act or other
requirements that materially varies any obligation set forth in this Accord.
Materially Vary or Varies —a requirement, condition, prescription, or recommendation
materially varies if it imposes additional obligations that in the discretion of the affected Utility
are significant and includes, but is not limited to: (A) reservoir elevation limitations; required
flow releases; low inflow protocols or high inflow protocols that are significantly different from
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Final Administrative and Policy Document 2 April 9, 2008

those in the CRA or in an Existing Project License (whether by changing the actual obligation or
by changing the method of implementing the obligation); (B) upstream or downstream passage
of diadromous fish at a Project dam on a schedule different from that identified in the Accord;
(C) installation of fishway equipment on a Project dam that is in addition to or different from
what is required by the Accord; or (D) fish studies, monitoring, or analyses that are in addition to
or different from what is required by the Accord.
Fish Passage Facilities, FishwMs, and Prescriptions— defined in Notice of Proposed
Interagency Policy on the Prescription of Fishways Under Section 18 of the Federal Power Act,
(Federal RegisterNolume 65, No. 247 /Friday, December 22, 2000) for existing hydroelectric
projects on the Saluda, Broad, and Catawba - Wateree rivers. These terms are used
interchangeably throughout this document.
Key Agreements
The CAP members agree as follows:
General Agreements
The Utilities will not pursue Trial Type Hearings ( "TTH ") before an Administrative Law
Judge pursuant to FPA § §4(e) or 18 to contest the USFWS's FPA § §4(e) or 18
diadromous fish requirements so long as the USFWS's ESA §7 requirements, FPA
§ §4(e) conditions, 10(a) and 100) recommendations, and 18 prescriptions do not
materially vary reservoir elevation limitations, required flow releases, low inflow
protocols or the high inflow protocols as set forth in: (A) the CRA; (B) Existing Project
Licenses at the Ninety -Nine Islands and Gaston Shoals Projects; (C) a settlement
agreement among the SCDNR, the USFWS, and SCE &G for the Saluda Hydroelectric
Project; and (D) this Accord.
2. The Plan, which emphasizes research on fish movement (both upstream and
downstream), distribution, and habitat use; fish population enhancement and restoration
activities; and related funding responsibilities for American eels, American shad, Atlantic
sturgeon, blueback herring, and shortnose sturgeon, will be implemented.
3. The Accord's no- sooner -than dates and biological triggers (in Appendix B) will be used
to initiate conceptual design and subsequent construction of fish passage facilities for
existing hydroelectric Projects on the Broad River and the Catawba - Wateree River.
4. The restoration target numbers for adult anadromous American shad and adult
anadromous blueback herring restoration in the Broad River are set in Appendix C.
5. Subject to limitations regarding confidential and proprietary information, the CAP will
establish and maintain a publicly accessible electronic archive for all data and documents
created as a result of the Accord. When requested by a Utility, the Agencies will treat
specific data provided by the Utility as confidential and proprietary, to the extent
permitted by law. This may include pre - decisional work products, proprietary
information, and sensitive resource data. In the event that any confidential or proprietary
information is required by law to be released by an Agency, that Agency shall provide
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Final Administrative and Policy Document 3 April 9, 2008

CAP members affected by such a release with at least a 30 -day written notice in advance
of such release, unless a shorter notice period is required by law. Nothing herein shall be
interpreted to prevent any Agency from complying with the Freedom of Information Act
and 43 CFR Part 2, Subpart A and B.
6. If any Utility considers an action or omission to be an Inconsistent Act or a Breach, then
that Utility may withdraw from this Accord by giving written notice of its intent to
withdraw, pursuant to Paragraph 7; provided, however, that in the case of an Inconsistent
Act, such notice of withdrawal may not take place until the time period to initiate
administrative appeal of the Inconsistent Act has expired.
7. A withdrawing Utility initiates withdrawal by providing written notice of an Inconsistent
Act or Breach and its intent to withdraw to all CAP members. This notice must include a
brief statement setting forth: (A) the date and nature of the Inconsistent Act or Breach
giving rise to the right to withdraw and (B) how the alleged Inconsistent Act or Breach
meets the definition of "Inconsistent Act" or "Breach," as defined herein.
In the event of an alleged Accord Breach by any CAP member, the CAP member that is
alleged to have breached the Accord shall have thirty (30) days after receipt of the notice
of Breach within which to cure the Breach. If it is not reasonably possible to cure such
Breach within thirty (30) days, the breaching CAP member shall notify the CAP Board
( "Board," see Paragraph 26) of the time reasonably necessary to cure such Breach. If the
Board can agree on the time reasonably necessary to cure the Breach, the breaching CAP
member shall proceed to cure such Breach within such time as the Board shall agree. If
the Board is unable to agree on the time reasonably necessary to cure the Breach, the
breaching CAP member shall proceed to cure such Breach as soon as reasonably
possible. The breaching CAP member(s) shall keep the Board informed of the progress
in curing the Breach. Failure of the breaching CAP member to cure a Breach in
accordance with this paragraph shall allow the CAP member that is harmed by the Breach
to withdraw from the Accord.
9. In the event of a withdrawal by a Utility or the failure of a Utility to cure a Breach of the
Accord, the Agencies have the option to reconsider any prior fish passage prescriptions
submitted pursuant to FPA §18 for Projects owned by the withdrawing or breaching
Utility. Withdrawal relieves the Utility of its performance obligations under this Accord,
but will not result in the return of any funds previously contributed pursuant to Paragraph
37.
10. If the Accord Utility membership changes, the Plan will be adjusted by the remaining
CAP members to be compatible with funding being provided by the remaining member
Utilities.
11. The Agencies and Utilities agree that extension of the Plan beyond 2017 is optional, and
the obligation and agreement to comply with the Accord is not conditioned upon a
continuation of the Plan beyond the initial 10 -year term.
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12. The Agencies and the Utilities agree to use their best efforts to make this Accord a
success and to participate in all Accord administrative activities at their own expense.
SCE &G Specific Agreements
13. The reservoir elevation limitations, required flow releases, low inflow protocols or high
inflow protocols to be developed in a relicensing agreement for the Saluda Hydroelectric
Project among the USFWS, SCDNR, and SCE &G along with the reservation by the
USFWS of any fishway prescriptions for this Project will be filed with the FERC for the
term of the new Saluda Hydroelectric Project license which is anticipated to be issued in
2010.
14. It is the understanding of the CAP that the diadromous fish study needs below the Parr
Shoals Development Dam will be addressed through the Accord. Additional diadromous
fish studies downstream of Parr Shoals Development Dam will not be required during the
relicensing of the Parr Hydroelectric Project. A Fish Passage Feasibility Assessment (an
evaluation of the upstream and downstream passage alternatives and their conceptual
designs) will be conducted pursuant to the Accord, by SCE &G, and will commence upon
attainment of the biological triggers as set out in Appendix B.
15. The Fish Passage Feasibility Assessment will commence at the Parr Shoals Development
Dam within one year following passage of 50% of the adult anadromous American shad
or adult anadromous blueback herring target restoration numbers as set out in Appendix
B, upstream for any three years in a five -year period at the Columbia Diversion Dam Fish
Passage Facility. Construction of a fishway at the Parr Shoals Development Dam will be
initiated within one year and completed within three years following passage of 75% of
the adult anadromous American shad or adult anadromous blueback herring target
restoration numbers as described in Appendix B, upstream for any three years in a five -
year period at the Columbia Diversion Dam Fish Passage Facility. In no event shall fish
passage feasibility assessment or construction of the fishway commence before 2012. No
changes will be required in the Parr Hydroelectric Project's current operations until
issuance of the new FERC license for this Project. Any fish passage at this Project will
not impact generation and pumping operations at the Fairfield Pumped Storage Facility
until relicensing studies support the need for such a change and then only with the
issuance of the new license for the Parr Hydroelectric Project (anticipated to be issued by
FERC in 2020).
16. The USFWS agrees to reserve its FPA §18 authority to prescribe any type of fish passage
facilities for sturgeon species at the Parr Shoals Development Dam until the new FERC
license is issued for the Parr Hydroelectric Project, anticipated to be in 2020.
17. In the event that SCE &G applies for an amendment to the Parr Hydroelectric Project's
current license for construction of a future power plant, the USFWS will reserve its
authority under FPA §4(e) and § 18 for this license amendment at that Project.
18. The Fish Passage Feasibility Assessment, including conceptual designs, will begin at the
Neal Shoals Hydroelectric Project within one year following 50% of target restoration
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numbers for adult anadromous American shad or adult anadromous blueback herring, as
described in Appendix B, being passed upstream for any three years out of a five -year
period at the Parr Shoals Dam. The construction of fish passage facilities at the Neal
Shoals Hydroelectric Project will commence within one year and be completed within
three years following passage of 75% of target restoration numbers of adult anadromous
American shad or adult anadromous blueback herring being passed upstream three years
out of a five -year period at the Parr Shoals Development Dam, but in no event shall the
fish passage feasibility assessment or construction commence before 2016.
Duke Specific Agreements
19. For the Catawba - Wateree Hydroelectric Project, the obligation to operate a fishway and
associated facilities as set out in the Accord will continue for the term of the new license,
and the USFWS agrees that the prescription to be filed with the FERC for the new license
will include such a provision. A trap and truck fish passage facility ( "T &T facility ") for
adult anadromous American shad and adult anadromous blueback herring will be
designed by Duke, in consultation with the Agencies and with input from the Accord
Technical Committee ( "TC;" see Paragraph 33), by December 31, 2015, and will
commence operation by January 1, 2018, at the Wateree Development of the Catawba -
Wateree Hydroelectric Project (see Appendix B). Fish trapped at this T &T facility will
be placed in Lake Wateree. The year after the combined annual total catches of adult
anadromous American shad and adult anadromous blueback herring equal or exceed
10,000, and in all subsequent years of the term of this Accord, all trapped adult
anadromous American shad and adult anadromous blueback herring shall be trucked to
upstream areas in the SC portion of the Catawba - Wateree River Basin designated by the
TC. If the Accord is not functional, then the USFWS and the SCDNR will designate
these upstream reaches in the SC portion of the Catawba - Wateree River Basin by
consensus. Effectiveness studies (e.g., usefulness of attraction flows to increase capture
of target fish and determination of target fish mortality associated with handling and
transportation) for this T &T facility will be conducted by Duke during the first three
years of operations, provided sufficient numbers of fish, as determined by the consensus
of the Agencies with input from the TC, are available to do so. Information from the
effectiveness studies will be used to improve effectiveness of the T &T facility.
20. The Agencies agree that operation of the T &T facility at the Wateree Development, as
specified above and as incorporated in the prescription to be filed with the FERC for
inclusion in the new license, will fulfill FPA §18 prescriptions and ESA §7 requirements
for upstream passage for all adult anadromous fish (including but not limited to American
shad, blueback herring, Atlantic sturgeon, and shortnose sturgeon) for all Catawba -
Wateree Hydroelectric Project developments for the term of the new license.
21. The SCDNR will issue a scientific collection permit to operate the T &T facility at the
Wateree Development pursuant to SC Code §50 -11 -1180 to ensure that Duke will not be
held civilly or criminally responsible for any bycatch mortality, provided Duke is in
compliance with its collection permit.
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22. The Agencies agree that existing upstream fish passage facilities at the Wateree
Development (i.e., partial ramp(s) and manual trap(s) in good repair and similar to that
described in David Solomon's 2004 Fish Passage Design for Eels and Elvers) that use
manual transport and release of captured American eels into Lake Wateree are sufficient
to fulfill FPA § 18 upstream prescriptions for catadromous fish (e.g., American eels) at
the Wateree Development, when supplemented with additional partial ramp(s) /manual
trap(s) determined by the results of partial ramp /manual trapping conducted in all seasons
in 2009 -2011 in areas adjacent to the spillway (data collected via the Catawba - Wateree
River Elver Study in Appendix A). So long as American eels are passed upstream at the
Wateree Development in an efficient, safe, and timely manner, Duke, at its sole
discretion, may decide to continue operation of the ramp /trap fishway or construct a new
passage facility. If Duke chooses to construct a new American eel passage facility at the
Wateree Development, Duke will consult with the Agencies and the TC regarding facility
design and construction.
23. The Agencies and Duke agree that a series of portable ramp /trap devices will be
sufficient for the three -year monitoring studies, and that the studies will be conducted at
each development in an orderly upstream sequence of the Catawba - Wateree
Hydroelectric Project developments upstream of the Wateree Development. A template
for the initial and subsequent studies to ascertain American eel abundance at each tailrace
site is set out in the 10 -Year Action Plan and is budgeted in Appendix A (location of such
studies will occur in an orderly upstream sequence beginning at the Rocky Creek -Cedar
Creek Development and ending at the Bridgewater Development at a time to be
determined in consultation with the Agencies and with input from the TC). These data
will allow effective design and placement of permanent or semi - permanent passage
devices for best upstream passage at each development for American eels. Duke will
develop a study plan for review and approval by the Agencies with input from the TC
prior to commencing any studies at these upstream developments. Information collected
from these studies shall include size, seasonality, and location of juvenile American eels
in the tailrace areas where these fish may congregate. Captured American eels will be
passed into the immediate upstream reservoir. The Agencies and the TC may approve a
request for extension of the term of the initial monitoring study in the event few
American eels are captured during the study phase.
24. Following the above monitoring for American eels described in Paragraph 23, Duke
agrees to design, construct, and operate at each development (in consultation with the
Agencies and with input from the TC after a review of the data collected during each
three -year study) permanent or semi - permanent upstream passage facilities at each
development within two years of completion of the monitoring study at a particular
development. So long as American eels are passed upstream at each development in an
efficient, safe, and timely manner, Duke, at its sole discretion, may decide to continue
operation of the ramp /trap type fishways or construct a new passage facility at each
Catawba - Wateree Project development.
25. Duke in cooperation with Agencies and with input from the TC will commence studies in
2024 to address the safe, timely, and effective downstream passage of American eels in
the Catawba - Wateree system.
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Final Administrative and Policy Document 7 April 9, 2008

Management and Direction
CAP Board
26. The Accord will be directed by a Board composed of one representative appointed by
each CAP member. Each CAP member may designate an alternate who may function as
its Board representative in the absence of the appointed Board member. It shall be the
responsibility of each CAP member to notify other members in writing within 14
calendar days following any change of the name or contact information for its Board
member and /or alternate. On an annual basis, the Board shall elect a chairperson
( "Chair ") and may elect other officers as deemed necessary. Initial terms for Board
members will be staggered so that there is continuity in the operation of the Accord over
the long term, with Duke and USFWS Board members serving three -year initial terms
and SCE &G and state agency members serving two -year terms. Successive Board
members will serve two -year terms. Meetings by the Board will be held in compliance
with the Freedom of Information Act in the jurisdiction where the meeting is held.
27. The initial Board shall establish and schedule at least one meeting of the Board per
calendar year (Annual Meeting) for the duration of the Accord. The Chair will select the
meeting location and will develop an agenda and provide draft minutes of the previous
meeting within two weeks following each meeting and require all members to return their
comments within two weeks following receipt of the draft minutes. Additional meetings
(Called Meetings) of the Board may be called by the Chair or upon the agreement of at
least 25 percent of the Board members, but no Called Meeting that is not called by
consensus vote by the Board may be held with less than four weeks prior written notice.
28. A quorum is required for the transaction of business (e.g., official votes) at any Board
meeting. A quorum is defined as the presence of a representative or alternate of each
CAP member participating in the Accord on the date of the meeting. Once a quorum is
established, it may not be broken by departure of one or more members' representatives
or alternates, and voting may occur once a quorum is established.
29. Failure to comply with terms of the Accord, including the prompt payment of a Utility's
annual contributions, will result in the revocation of that member's right to vote until the
failure to comply is remedied.
30. The representatives of the members, or their alternates, may participate, which
participation includes voting, in meetings by any means of communication by which all
participants may simultaneously hear each other during the meeting. A member's
representative or its alternate participating in a meeting by this means is deemed to be
present in person at the meeting. No proxy voting shall be permitted. A member's
alternate shall not vote if that member's regular representative is present.
31. In addition to conducting its affairs at meetings, the Board may also validly exercise its
authority in writing. A proposal may be presented, whether in written or electronic
format, to each member's representative. Upon the approval, whether in written or
electronic format, of each member's representative to that written proposal, the action of
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Final Administrative and Policy Document 8 April 9, 2008

the Board concerning the proposal will constitute a valid exercise of the Board's
authority. A complete record of all action taken by the Board without meeting shall be
filed with the minutes of the proceedings of the members, whether done before or after
the action so taken.
32. Final decisions must be made by consensus of Board members or their alternates.
Technical Committee (TC)
33. A TC comprised of fishery biologists and /or other qualified professionals representing
each CAP member will be established by the Board and will advise the Board on
technical issues associated with the Accord. The TC will exist for the duration of the
Accord.
34. The TC will develop consensus recommendations to the Board and will guide the design
and implementation of all Plan tasks for the duration of the Plan. Following the
expiration of the term of the Plan, the TC will function as a scientific advisor to the Board
regarding all matters related to the restoration of diadromous fish in the Santee Basin.
35. Failure to allocate and disburse funds according to direction of the Board will result in
the revocation of that member's right to participate or to vote on matters brought to the
TC, until the failure to comply is remedied.
36. For the duration of the Accord, the TC will provide a brief written annual progress report
to the Board by February 15 of the following year.
Communications Protocol
The Board will develop a protocol to communicate clearly on all Accord - related resource study,
protection, restoration, and enhancement activities occurring in the Basin. All CAP members
shall adhere to the Communications Protocol. It is the intent of the Accord to publicly
disseminate all technical and scientific findings of its monitoring and study efforts.
Term of the Accord and the 10 -year Action Plan
The effective date of this Accord shall be April 15, 2008. The Accord shall terminate for
SCE &G at the end of the term of the new FERC license for the Saluda Hydroelectric Project
(expected to be issued by the FERC in 2010) and for Duke at the end of the term of the new
FERC license for the Catawba - Wateree Hydroelectric Project (expected to be issued in 2009).
Each annual extension, if any, of the applicable new licenses by the FERC (commonly referred
to as an "annual license ") will also extend the term of the Accord for the applicable Utility by
one year. Since diadromous fish restoration can be a long -term endeavor, the Board may desire
to extend the term of the Plan, or to increase funding during its term. Through a consensus vote
of its members, the Board may alter or modify Plan tasks and expenditures within those amounts
currently established by the Plan and such Plan modifications do not require new signatures on
the Accord from the authorized representative of each CAP member's organization.
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Final Administrative and Policy Document 9 April 9, 2008

The term of the Plan shall be April 15, 2008, through December 31, 2017, unless extended as
noted above. The Board shall consider revision or renewal of the Plan in 2015 and shall decide
by consensus of its membership if the Plan shall be revised or renewed. A decision not to extend
or renew the Plan does not affect the obligations of and agreements among the CAP members
contained in the Accord.
Dispute Resolution
Major disputes regarding the Accord, if at all possible, will be resolved by the Board through
good -faith negotiations which may be assisted by selecting the services of a neutral mediator
(cost of the mediator to be shared as determined by the Board).
Roles and Responsibilities for Implementing the 10 -year Action Plan
Utilities
37. Utilities will fund the Plan with SCE &G providing $200,000 per year (unadjusted annual
contribution) and Duke providing $500,000 per year (contributions expressed in 2008
dollars and to be adjusted annually using the Consumer Price Index). Additional funding
secured through grants or other sources by the CAP may be incorporated into the budget
and is encouraged. Funding levels provided by the original Utilities are set at that
described above. If the costs of proposed activities and studies under the Plan exceed the
funding provided by the Utilities, then later activities and studies under the Plan will be
abandoned or reduced appropriately as determined by the Board to accommodate the
funding level agreed to in this document, unless the necessary additional funding can be
obtained by new utility participants, non -CAP member entities, grants and /or existing
Fisheries Enhancement Plans from within the Basin. However, funding by non -CAP
members will not render otherwise ineligible entities eligible to guide Accord activities or
become members of the CAP.
38. In addition to the funding set forth in Paragraph 37, Utilities will provide
technical /scientific input to program development, personnel and in -kind services (as
appropriate), while conducting some studies, and will provide assistance in the
scheduling and conduct of studies.
State and Federal Agencies
39. Agencies will provide technical /scientific input to program development, assistance in
the scheduling of studies, personnel and in -kind services (as appropriate) while
conducting some studies, and assistance in reporting study results.
40. Agencies will investigate and solicit any sources of supplemental or matching funds.
41. Agencies will assist, to the extent practicable, with the issuance of all applicable permits.
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Final Administrative and Policy Document 10 April 9, 2008

Fund Management
Funds to be contributed by the Utilities shall be maintained by each Utility and accounted for in
a separate CAP Fund Account. The CAP Board will develop and adopt procedures concerning
when the Utilities will deposit their contributions to this account and how disbursements from
this account are approved. Each Utility shall provide annually, no later than March 31, a report
of all fund deposits, disbursements, and balances for the previous calendar year. Any funds
obtained by a Utility from other sources that are to be used solely in the execution of the Plan
shall be included in that Utility's CAP Fund Account and shall be identified in the annual report
as a contribution by others. The annual reports provided by the Utilities to the CAP Board will
be provided to all CAP members. All such funds, whether contributed by Utilities or others shall
be the exclusive property of the CAP to be disbursed and spent according to the Board.
Disbursements from a Utility's CAP Fund Account shall be made only at the consensus direction
of the CAP Board. Each Utility owes a fiduciary duty to manage and account for the funds for
the benefit of the CAP and to follow the CAP Board's direction for disbursements.
It is the desire of the Utilities that all monies contributed to the Plan be spent during the term of
the Plan. In the event that the Plan is not extended and unspent funds are available at the
conclusion of the Plan term, the Board will decide by consensus and direct the Utilities to
allocate these monies to other ongoing programs of a similar nature and the Utility CAP Fund
Accounts will be closed, after which each Utility shall submit to the CAP Board a final
accounting report within 60 days following closing its account.
Reserved Authority
The Utilities recognize that the USFWS will reserve authority to alter its FPA §4(e) conditions
and FPA § 18 prescriptions for diadromous fish. The Agencies and Utilities agree that the
Accord provisions are appropriately based on current knowledge of diadromous fisheries in the
Santee River Basin. The USFWS believes it will be able to meet its FPA §§ 4(e) and 18 and
ESA §7 obligations consistent with its Accord commitments.
State Commitments
The SCDNR agrees to use its best efforts to make this Accord a success. In the event that the
USFWS exercises its reserved authority and issues a FPA §18 prescription or a FPA §4(e)
condition, or an ESA §7 requirement, or the SCDHEC issues a CWA §401 certification that is
inconsistent with, or would impose obligations in addition to those set forth in the Accord or
Project settlement agreement with the SCDNR, the SCDNR may exercise any procedural and
substantive rights it may have to contest such a prescription, condition, or requirement.
The NCWRC agrees to use its best efforts to make this Accord a success. In the event that the
USFWS exercises its reserved authority and issues a FPA §18 prescription or a FPA §4(e)
condition, or an ESA §7 requirement, or the North Carolina Division of Water Quality issues a
CWA §401 certification that is inconsistent with, or would impose obligations in addition to
those set forth in the Accord or Project settlement agreements with the NCWRC, the NCWRC
may exercise any procedural and substantive rights it may have to contest such a prescription,
condition, or requirement.
Santee River Basin Accord:
Final Administrative and Policy Document 11 April 9, 2008

Modification of the Accord
This Accord may be modified; however, except for modifications of the Plan as described above,
no modification of the Accord will be effective or valid unless it is signed by the authorized
representative of each CAP member's organization.
Miscellaneous Agreements
No Admission of Liability — The Accord is a compromise, balancing many interests. The actions
taken hereunder are not intended nor shall be construed as an admission on the part of any CAP
member, or its agents, representatives, attorneys or employees that such CAP member was so
obligated in any manner independent of this Accord. Except as provided herein, no CAP
member shall be prejudiced, prevented, or estopped from advocating in any manner or before
any entity, including the FERC or any state agency, any position inconsistent with those
contained in this Accord regarding the licensing, permitting and license compliance of these or
any other hydropower projects other than those addressed in this Accord.
Accord Terms Contractual/Merge r — The terms of the Accord are contractual and not mere
recitals. This Accord, which includes and fully incorporates any and all Appendices and the Plan,
constitutes the entire agreement among the CAP members with respect to the subject matter
hereof. All prior contemporaneous or other oral or written statements, representations or
agreements by, between or among any of the CAP members, with respect solely to fish passage
and fishway prescriptions of the subject Projects are superseded hereby. Nothing herein shall be
construed to affect, negate, or supersede obligations and benefits arising from Duke's
Comprehensive Relicensing Agreement and SCE &G's potential settlement agreement for the
Saluda Hydroelectric Project regarding reservoir elevation limitations, required flow releases,
low inflow protocols or high inflow protocols.
Enforceability — All terms of the Accord not incorporated as FERC License Articles shall be
enforced through remedies available under applicable state or federal law.
Compliance with Laws — It is the responsibility of the CAP members to comply with all
applicable federal, state and local laws, codes, rules, regulations, and orders of any governmental
authority, and, except as otherwise provided herein, each CAP member will obtain, at its own
expense all permits and licenses pertaining to its obligations under the Accord. The Accord is not
intended and shall not be construed as a defense to or a limitation on civil or criminal liability in
any action brought by any governmental entity to enforce any law and shall not limit the
assessment or award of any fees, fines, penalties, remediation costs or similar liabilities in any
such enforcement action.
Force Mai eure — The Parties agree that a CAP member shall not be in breach of the Accord to
the extent that any delay or default in performance is due to causes beyond the reasonable control
of the delayed or defaulting CAP member; provided, that the delayed or defaulting CAP member
notifies the other CAP members as soon as possible of: (A) the event; (B) the expected duration
of the event; and (C) the delayed or defaulting CAP member's plan to mitigate the effects of the
delay or default. Such causes may include, but are not limited to, natural disasters, labor or civil
disruption, acts of terrorism, the inability to secure any legal authorization from another entity
Santee River Basin Accord:
Final Administrative and Policy Document 12 April 9, 2008

(e.g., a permit or license) where such legal authorization is a prerequisite or requirement for
complying with the Accord, or breakdown or failure of the affected Project's works, so long as
such causes are beyond the reasonable control of the delayed or defaulting CAP member.
Applicable Law and Venue — This Accord shall be governed by the law of the state wherein the
subject hydroelectric development is located. Execution of the Accord does not constitute a
consent to jurisdiction of any court unless such jurisdiction otherwise exists. Execution of the
Accord also does not constitute a waiver of any immunity or privilege except as provided by law.
Waiver Independence — No consent to or waiver of any provision of the Accord shall be deemed
either a consent to or waiver of any other provision hereof, whether or not similar, or a
continuing consent or waiver unless otherwise specifically provided.
Water Rights Unaffected — Except as between the Parties hereto and as specifically set forth in
this Accord, the Accord does not release, deny, grant or affirm any property right, license or
privilege in any waters or any right of use in any waters. The Accord does not authorize any
person to interfere with the riparian rights, littoral rights or water use rights of any other person.
No person shall interpose the Accord as a defense in an action respecting the determination of
riparian or littoral rights or other water use rights.
Parties' Own Costs — Except as expressly provided for in the Accord, all CAP members are to
bear their own costs of participating in the Accord.
Existing Laws — Unless otherwise noted, any reference to any statute, regulation or other
document refers to the statute, regulation or document as it exists on the date of the first
signature on the Accord.
No Third -Party Beneficiary — The Accord shall not create any right in any individual or entity
that is not a signatory hereto or in the public as a third -party beneficiary. This Accord shall not
be construed to authorize any such third party to initiate or to maintain a suit in law or equity or
other administrative proceeding.
No Commitment of Funds — Nothing in the Accord shall be construed as obligating any federal,
tribal, state, or local agency to expend in any fiscal year any sum in excess of appropriations
made by Congress, tribal councils, or state or local legislatures or administratively allocated for
the purpose of this Accord for the fiscal year or to involve any federal, tribal, state, or local
agency in any contract or obligations for the future expenditure of money in excess of such
appropriations or allocations.
No Government Agency Delegation — Nothing in the Accord shall be construed as requiring or
involving the delegation by any government agency to any other body of any authority entrusted
to it by Congress, tribal council, or by the legislature of any state.
Successors and Assigns — The Accord shall apply to, and be binding on, the CAP members, their
successors, transferees and assigns. No change of ownership in a Project or transfer of a license
shall in any way modify or otherwise affect any other CAP member's interests, rights,
responsibilities, or obligations under the Accord. (See the General section of the Accord for a
list of Projects and current licensees.) Unless prohibited by applicable law, the licensee of the
Santee River Basin Accord:
Final Administrative and Policy Document 13 April 9, 2008

affected Project shall provide in any transfer of the existing or new license for the Project, that
such new owner shall be bound by, and shall assume the rights and obligations of the Accord
upon completion of the change of ownership. In the event applicable law prohibits the new
owner from assuming the rights and obligations of the Accord, any CAP member may withdraw
from the Accord. The licensee of the affected Project shall provide written notice to the other
CAP members at least 90 days prior to completing such transfer of the license.
Caption Headings – The paragraph titles and caption headings in the Accord are for convenience
of reference and organization, are not part of the Accord, and shall not be used to modify,
explain, interpret, or define any provisions of the Accord or the intention of the CAP members.
Limitation of Applicability – The CAP members have entered into the negotiations and
discussions leading to the Accord with the explicit understanding that all discussions relating
thereto are to be considered as settlement negotiations, shall not prejudice the position of any
CAP member or entity that took part in such discussions and negotiations, and are not to be
otherwise used in any manner in connection with these or any other proceedings. The CAP
members understand and agree that execution of the Accord establishes no precedents, does not
admit or consent to any fact, opinion, approach, methodology, or principle except as expressly
provided herein.
Execution in Counterparts – This Accord may be signed in counterparts to expedite signatures,
and shall become binding between the Utilities and the Agencies upon the last signature below
by an authorized representative of each.
Full Legal Authority – Each signatory Party to the Accord represents that it has the full legal
authority to execute this Accord and to bind the principal who it represents, and that by such
representative's signature, such principal shall be bound upon full execution of the Accord.
Notices – Notices in connection with matters under the Accord shall be provided in writing and
addressed to:
Hugh Barwick
Senior Environmental Resource Manager
Duke Energy Carolinas, LLC
526 South Church Street, P. O. Box 1006 (EC12Y)
Charlotte, NC 28201 -1006
704/382 -8614 FAX
William Argentieri, PE
Manager —Civil Engineering F/H Technical Services
South Carolina Electric & Gas Company
111 Research Drive
Columbia, SC 29203
803/933 -7849 FAX
Santee River Basin Accord:
Final Administrative and Policy Document 14 April 9, 2008

Bennett Wynne
Anadromous Fish Coordinator
NC Wildlife Resources Commission
901 Laroque Avenue
Kinston, NC 28501
252/522 -9736 FAX
Richard Christie
FERC Coordinator
SC Department of Natural Resources
1771 -C Highway 521 By -Pass South
Lancaster, SC 29720
803/286 -5598 FAX
Tim Hall
USFWS Field Supervisor
176 Croghan Spur Rd., Suite 200
Charleston, SC 29407
843/727 -4218 FAX
Brian Cole
USFWS Field Supervisor
160 Zillicoa Street
Asheville, NC 28801
828/258 -5330 FAX
Santee River Basin Accord:
Final Administrative and Policy Document 15 April 9, 2008

AGREED TO BY THE AUTHORIZED REPRESENTATIVES OF THE PARTIES NAMED
BELOW ON THE DATES SHOWN BY THEIR SIGNATURES:
SOUT CAROLINA ELECTRIC & GAS COMP /ANY
By: cf-r� Date: 7' O
J es M. L
V ce President, Fossil Hydro Operations
111 Research Drive
Columbia, SC 29203
DUKE ENERGY CAROL NAS, LLC
By: Date: 41)01q
Steven D. Jester
Vice President, Hydro Licensing and Lake Services
526 South Church Street
Charlotte, NC 28202
U.S. FISH & WILDLIF IVICE
By Date: •?s las,
Sam Hamilton
Regional Direc r, Southeast Region
1 875 Century lvd., Suite 400
Atlanta, GA 30345
S.C. DEZ=D L RESOURCES
By: ate: s
Jo mpto
D' ctor
1000 Assembly Street
Columbia, SC 29202
N.C. WILDLIFE RESOURCES COMMISSION
By: eAQ �I Date: -L 4
Fred Harris
Interim Executive Director
1701 Mail Service Center
Raleigh, NC 27699 -1701
Santee River Basin Accord:
Final Administrative and Policy Document 16 April 9, 2008

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