Cube Yadkin and County Permit Requirements
Effective January 1, 2018 Updated SMP Permitting Fee Schedule
On October 23, 2017 FERC approved certain modifications to the Yadkin Project Shoreline Management Plan (SMP). The modifications (1) increase flexibility in the design of private individual and shared piers; (2) allow private piers in subdivisions developed prior to May 1, 1987, with a 50-foot lot width; (3) reduce the minimum water depth at private piers and multi-use facilities from 8 feet to 6 feet; (4) permit boat lifts with supports resting on the reservoir bottom; (5) allow a sitting area within the 100-foot forested setback; (6) relax limitations on vegetation removal in the 100-foot forested setback to improve water views, among other things; and (7) remove voluntary guidelines for timbering operations because most of the measures are already contained in the forested setback requirement. Cube Yadkin will begin accepting requests and applications under the approved modifications on November 1, 2017.
PRIVATE RECREATION FACILITY PERMIT TERMS AND CONDITIONS
- Yadkin Project. Cube Yadkin Generation (“Cube Yadkin”), a wholly-owned subsidiary of Cube Carolinas, owns and operates a hydroelectric project (the “Project”), licensed by the Federal Energy Regulatory Commission (“FERC”) under the Federal Power Act as Project License No. 2197, and within the Project boundary are certain lands and waters including High Rock, Tuckertown, Narrows and Falls Reservoirs (collectively, the “Reservoirs”). Cube Yadkin manages the Project lands and water in accordance with Cube Yadkin’s Shoreline Management Plan filed with FERC.
- Permittee’s Land. Permittee represents that Permittee is the owner of a tract of land (“Permittee’s Land”) whereon the permitted private recreation facility is located.
- Permit. Cube Yadkin gives to Permittee, and Permittee accepts, permission to have and use a private pier or other facilities within the Project boundary on the Permittee’s Land. Permittee may use the Permitted Facilities in accordance with the Permit and applicable Cube Yadkin policies, procedures and requirements, as added to, amended or revised from time to time, including without limitation Cube Yadkin’s Specifications for Private Recreation Facilities (the "Specifications''). The Specifications may be obtained by request to Cube Yadkin and were previously provided to Permittee.
- Term. Unless sooner terminated by Cube Yadkin in accordance with Paragraph 5 or Paragraph 8 below, the Permit will be effective for a twelve-month term from May 1 to April 30 at which time the Permit will automatically terminate. At Cube Yadkin’s option, Permittee may be issued a new Permit for a one-year term from May l to April 30 of the next year. In this case, Permittee must, if Permittee desires to receive a new Permit, sign a new permit in the form offered by Cube Yadkin to private recreation facility permittees, a copy of which will be provided to Permittee by Cube Yadkin. Permittee must also pay the applicable Permit Fee being charged by Cube Yadkin for the upcoming year. The new permit and Permit fee must be received by Cube Yadkin by April 30 of the year in question. Permittee understands that the yearly term of any new permit is subject to Cube Yadkin’s right to terminate as described in Paragraphs 5 and 8 below. Cube Yadkin’s execution of any new permit will signify its approval.
- Termination. Cube Yadkin grants the Permit and Permittee accepts the Permit with the understanding that Cube Yadkin may terminate the Permit at any time upon 30 days' notice mailed to Permittee at the address on file with Cube Yadkin or by posting notice upon the Permitted Facilities. Permittee shall immediately notify Cube Yadkin of any change in the address on file with Cube Yadkin. In the event the Permit is so terminated before the termination date shows in Paragraph 4 above, Cube Yadkin will refund to Permittee one-twelfth (1/12) of the Permit Fee for each full calendar month remaining in the term of the Permit. No refund will be made to Permittee if Cube Yadkin terminates the Permit in accordance with Section 9 of the Permit.
- Private Use. The Permitted Facilities (may be used and enjoyed by only Permittee, and Permittee's family and invited guests, and only for their own recreational purposes. Permittee will not allow the Permitted Facilities to be used by the general public for compensation or otherwise, or for any commercial purpose.
- Assignment; Transfer. The Permit may not be assigned, in whole or in part, by Permittee. It will become automatically void upon any attempted assignment, foreclosure on Permittee's Land or the death of Permittee. No refund shall be made in any such event. The permission granted to Permittee under the Permit may be transferred to a subsequent purchaser of Permittee's Land, by following the procedures set forth in the Specifications, so long as (i) the Permitted Facilities have been maintained in good repair and comply with all applicable State and local health and safety standards, (ii) Permittee has complied with the Permit and all other applicable Cube Yadkin procedures and requirements, and (iii) the purchaser of Permittee's Land signs a new permit in the form required by Cube Yadkin.
Compliance with Permit; Cube Yadkin Requirements. By accepting and agreeing to the Permit, Permittee agrees to comply with the Permit, the Specifications, and all other applicable Cube Yadkin procedures and requirements. Without limiting the foregoing, Permittee specifically acknowledges and agrees that:
- Under the Permit, only the Permitted Facilities are allowed within Project lands or waters. No other facilities, activities or uses are permitted without Cube Yadkin’s prior written permission including but not limited to vegetation removal, installation of erosion control measures, such as retaining walls or rip rap, or any other attention of the shoreline such as excavation, dredging or fill;
- Permittee must maintain the Permitted Facilities in good repair and comply with applicable State and local health and safety requirements, and will do so in accordance with the Specifications; and
- Neither Permittee nor anyone acting for or through Permittee may discharge, dump or otherwise place or allow to enter in or upon the Project lands or waters any sewage, discharge from septic tanks, garbage, trash, or other waste materials.
- One of the underlying goals of the Permit and the Specifications is to protect and enhance the natural, environmental, cultural and scenic resources within the Project Boundary and on the adjoining lands. Cube Yadkin’s highest priority is to preserve the natural character of the shoreline as it exists today, and this is reflected in the terms of the Permit and the procedures and requirements of the Specifications. Cube Yadkin believes that most permittees appreciate the beauty and importance of a natural shoreline and will comply with the Permit. In those instances where violations of the Permit occur, however, Cube Yadkin will consider those violations as serious matters. Violations of the Permit include: (i) any failure to comply with the provisions of the Permit, the Specifications, or other applicable Cube Yadkin procedures or requirements; and (ii) failure to obtain or to comply with written permission from Cube Yadkin, where required, before undertaking construction or other activities.
- The primary sanctions for violations of the Permit are loss of eligibility for: (i) a private (individual or shared) facility permit within the Project boundary (i.e. on a reservoir); and (ii) use of, or private access to the Project lands and waters. Cube Yadkin will also require corrective action including but not limited to restoration and/or mitigation. Eligibility may be reinstated only where adequate restoration and/or mitigation is undertaken and Cube Yadkin determines that reinstatement of eligibility is otherwise consistent with the underlying goals reflected in the Specifications and Cube Yadkin’s Shoreline Management Plan. Cube Yadkin, as it deems appropriate, will consult with Federal and State regulatory agencies in determining adequate restoration and/or mitigation measures.
- In addition, in the event of a violation of the Permit, Cube Yadkin, at its sole option, has the right, upon ten (10) days prior written notice mailed to Permittee at the address on file with Cube Yadkin or by posting notice upon the Permitted Facilities, to: (i) terminate the Permit or any other existing permits; and (ii) erect a barrier along the Project boundary to restrict access to the Project lands and waters; and (iii) require, at Permittee's sole expense, (a) removal of any piers, pathways, or other facilities and structures located in the Project, and (b) restoration and/or mitigation, up to and including restoring Project lands and waters to their original condition. In addition, if Permittee fails to take the required action after notice from Cube Yadkin, Cube Yadkin will consider any facilities or structures remaining within the Project boundary as a trespass upon its property, and reserves the right to, at Permittee's sole expense, remove the facilities or structures, treat them as its own property without any liability to Permittee for payment, and perform the required restoration and/or mitigation. Cube Yadkin also may pursue any other rights or remedies, including damages, arising under the Permit and any other permit, or at law or in equity.
10. Water Levels: Project Operations. The portion of the Reservoir with respect to which the Permit is granted is an indivisible part of the Project, and the water level in the Reservoir will be subject to variations caused by the natural rise and fall of the Yadkin River, and by such rise and fall as operation of the Project facilities may make necessary or desirable. Permittee hereby releases, absolves, acquits and relieves Cube Yadkin and Cube Carolinas from any and all liability for damage or injury to person or property, real or personal, of Permittee or of those claiming through or under Permittee or of those enjoying the permissions granted by the Permit, arising or resulting from the construction, maintenance, or operation of the Project facilities.
11.Ingress and Egress Across Permittee's Land. In exchange for the permission granted herein, Permittee agrees to allow Cube Yadkin, its employees, agents, contractors, and representatives, the right of ingress and egress across Permittee's Land at reasonable times for purposes of accessing the Project lands and waters, or inspecting the Permitted Facilities or verifying compliance with the Permit, the Specifications or other reasonable business purposes.
12. Indemnification. Cube Yadkin and Cube Carolinas have no responsibility for, and Permittee hereby assumes and agrees to indemnify, defend and hold harmless Cube Yadkin and Cube Carolinas from and against, any violations of the terms of the Permit, and any and all injury (including death ), loss, damage, claims, demands, actions or causes of action, judgments, liability or expenses (including reasonable attorneys' fees) of any kind whatsoever, including without limitation damage or injury (including death) to person or property, real or personal (including loss of or damage to natural resources), arising from, connected with, or growing out of the existence, construction, reconstruction, repair, maintenance, modification or use of, or other activities related to the Permitted Facilities, the Reservoirs, violation of the terms of the Permit or the use or enjoyment of any right or privilege granted hereunder.
13. Reservation of Rights. The issuance of the Permit does not in any manner or to any extent limit the rights of Cube Yadkin or Cube Carolinas with respect to the Project lands or waters. Cube Yadkin and Cube Carolinas have and retain the full and complete right to possess and use the Project lands and waters, and to maintain the Project facilities. Permittee agrees not to assert or attempt to assert any right or claim to any of the Project lands or waters, or other property or rights of Cube Yadkin or Cube Carolinas, whether or not use or the same is granted in the Permit, and the grant of the Permit will not be deemed to vest title thereto in Permittee.
14. Expiration; Termination. Within 30 days after expiration or termination of the Permit, Permittee must remove the Permitted Facilities and restore the Project lands and waters to their condition existing prior to the granting of a permit therefor. If Permittee fails to do so within this time, Cube Yadkin, at Cube Yadkin’s option and without limiting its other rights and remedies hereunder, at law or in equity, may remove the Permitted Facilities and restore the Project lands and waters to their prior condition at the sole expense of Permittee, which Permittee will pay on demand, or may treat the Permitted Facilities as its own property without any liability to Permittee for payment.
- FERC License. The Permit is issued subject to the License for Project No. 2197 granted by FERC under the Order issued September 22, 2016, and to any lawful requirements of FERC related to the License.
- Amendment; Modification. The Permit may not be amended or modified except by an agreement in writing signed by both Cube Yadkin and Permittee.
- Severability. Any provision of the Permit that is found to be invalid or unenforceable, in whole or in part, shall not affect the validity or enforceability of any of the other provisions.