The Federal Energy Regulatory Commission has agreed with a South Carolina appeals court that found the state did not waive its right to issue water quality certification necessary for the relicensing of Duke Energy's 739.182-MW Catawba-Wateree hydroelectric project.
The South Carolina Court of Appeals ruled in 2012 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 that certification -- is required before FERC 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, after which point the state has waived, or given up, its right to certification allowing FERC to proceed.
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 appeals court ruling reversed 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 Duke has a rehearing petition pending before the appeals court, it meanwhile asked FERC to declare that South Carolina waived 401 certification because DHEC staff only issued a provisional certification within the required one year, not a final certification, which was subsequently overturned by the South Carolina board after the one-year window had expired.
In an April 17 order, FERC disagreed.
"As noted above, the South Carolina DHEC decision was styled 'Notice of Department Decision – Water Quality Certification,'" FERC said. "While the agency did indeed state that it had reached 'a proposed decision,' it also stated that a final certification would be issued unless there was a timely request for review of the decision and that the decision was a 'final decision that may be appealed.'"
FERC further said, even if the DHEC action was not deemed a "final action," it would not help Duke.
"Section 401 of the Clean Water Act does not mandate 'final action' by a state, but rather requires that a state must 'act on a certification request within one year.' ...We conclude that where, as here, a state timely issues a certification that will by its terms become final within 15 days if not appealed, the state action is sufficient to avoid waiver," FERC concluded.
In overturning the DHEC staff's 401 approval in 2009, the South Carolina Board of Health and Environmental Control found there were not sufficient flows provided to protect classified uses of the waterway and the endangered shortnose sturgeon or to ensure adequate downstream flows to assure water quality standards would be met.
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.