Duke appeals denial of CWA 401 certification for 724.74-MW Catawba-Wateree

Hydro operator Duke Energy has appealed the state of South Carolina’s denial of Clean Water Act certification for the relicensing of Duke’s 724.74-MW Catawba-Wateree hydroelectric project in South Carolina and North Carolina.

Duke notified the Federal Energy Regulatory Commission Sept. 17, 2009, of the appeal, which was filed with the South Carolina Administrative Law Court Sept. 4. Appeals of state actions under Clean Water Act Section 401 must be appealed in state courts, even though 401 certification, or a state waiver, is required before FERC can license a hydroelectric project.

At the urging of South Carolina Attorney General Henry McMaster, the South Carolina Board of Health and Environmental Control acted in July to reverse its staff’s approval of water quality certification for the project (No. 2232) on the two-state Catawba River. (HydroWorld 7/15/09) FERC subsequently issued a final environmental impact statement endorsing the project’s relicensing. (HydroWorld 8/10/09)

Several environmental groups had appealed issuance of the 401 certificate by the staff of the Department of Health and Environmental Control. However, McMaster argued issuance of the permit could interfere with a lawsuit by South Carolina against North Carolina, which is before the U.S. Supreme Court. South Carolina seeks to reduce the amount of water North Carolina withdraws from the Catawba before it flows into South Carolina.

Duke: State action arbitrary, capricious

Duke’s petition to the South Carolina court said the state board’s denial of certification was arbitrary and capricious, adding that the board’s staff found Catawba-Wateree’s proposed discharge of water would meet state water quality standards.

“The DHEC Board did not adopt the increased flows requested by American Rivers and South Carolina Coastal Conservation League, but denied the certification at least in part because of the South Carolina Attorney General’s irrelevant claims that approving the certification ‘will be jeopardizing that case and economic, cultural, social, environmental future and growth of this state. It would be a drastic mistake to do so,’” Duke’s petition said. “Jeopardizing the attorney general’s Supreme Court case against North Carolina is not a lawful basis to deny water quality certification.”

Duke filed an application to relicense Catawba-Wateree’s 13 powerhouses and 11 reservoirs in 2006. Five of the project’s dams are located in South Carolina. The rest are in North Carolina, which has issued its 401 certification.

Plants in the Catawba-Wateree project include 56-MW Wateree, 28-MW Rocky Creek, 45-MW Cedar Creek, 24-MW Great Falls, 46-MW Dearborn, 37-MW Fishing Creek, 60-MW Lake Wylie, 60-MW Mountain Island, 350-MW Cowans Ford, 26-MW Lookout Shoals, 36-MW Oxford, 26-MW Rhodhiss, and 20-MW Bridgewater.

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