The South Carolina Court of Appeals has reversed a lower court finding that South Carolina waived its right to issue water quality certification necessary for the relicensing of Duke Energy's 724.74-MW Catawba-Wateree hydroelectric project.
The appellate court ruled Dec. 12 that the South Carolina Administrative Law Court was wrong to declare that the state Department of Health and Environmental Control waived certification by failing to act on Duke's request for certification of Catawba-Wateree (No. 2232) within the 180 days required by state law for review of federal Clean Water Act Section 401 applications.
State 401 certification -- or waiver of certification -- is required before the Federal Energy Regulatory Commission can license or relicense a hydroelectric project. The CWA gives states one year to review an application, while South Carolina law gives only 180 days.
Duke originally appealed to the South Carolina Administrative Law Court in 2009 because the South Carolina Board of Health and Environmental Control reversed the DHEC staff's approval of water quality certification for the project.
The 2-1 appellate ruling reverses a summary judgment by the Administrative Law Court that the state waived its right for 401 certification by failure to rule within 180 days. The appeals court found that South Carolina regulations allow DHEC to stop the clock from running on the application while it awaits answers to its requests for more information from an applicant.
While the case now returns to the Administrative Law Court for further consideration, Duke also has the option of asking the Court of Appeals for a rehearing.
Duke filed an application in 2006 to relicense Catawba-Wateree's 13 powerhouses and 11 reservoirs in South Carolina and North Carolina. Five of the project's dams are located in South Carolina. The rest are in North Carolina, which has issued its 401 certification. FERC has issued a final environmental impact statement endorsing the project's relicensing.
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.