20030147 Ver 2_General Correspondence_20080206

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State of North Carolina
Department of Justice
ROY COOPER
tlttorney General
9001 Mail Service Centex
Raleigh, NC 27699-900'1
Writer's Contact Information:
Marc Bcrostcin
Environmental Division
1-et: 919-7 t ~-~~oo
Fax: 919-71G-6767
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February 5, 2008
Ron Qualkenbush
156 Stratford Road
Lexington, NC 27292
Re: Alcoa Power Generating, Inc., FERC Proj. No. 2197-073
Dear Mr. Qualkenbush:
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The Attorney General has referred your letter to me for response. By your letter, and your
previous. letters on this topic, you have provided your comments regarding the Federal Energy
Regulatory Commission ("FERC") relicensing process for the Alcoa Power Generating, Inc.
("APGI") project on the Yadkin River. Staff of various State agencies, including myself, have
participated in and are continuing to participate in this and the related Progress Energy FERC process
to protect the rights of the State of North Carolina and advance State policies regarding
environmental quality, fish and wildlife, parks and recreation, historic places, etc. The State has
engaged in several similar FERC relicensings in recent years and has achieved great success for the
public in these processes.
I appreciate the time and effort you have invested in your participation in this process and
your input regarding legal issues. In general, your comments on legal issues relate to State authority
regarding control of the waters of the Yadkin River as that authority may stem from, for example,
the public mist doctrine. Regarding many of the issues you have raised under various laws, the State
has, at various times and with regard to various projects, reviewed. these issues to determine the
scope of its authority. The State's authority, of course, is not unlimited. See, e.g., First Iotiva
Hydro-Elec. Co-op. v. Federal Power Comm'n, 328 U.S. 152 (1946) (discussing intersection of
federal and State authority regarding hydropower under the Federal Power Act); Washington Dept.
of Game v. Federal Power Comm 'n, 207 F.2d 391 (9th Cir. 1953) (applying principles of First Iowa
to section 9(b) of the Federal Power Act, 16 U.S.C. §802(b)); see also PUD No. 1 of Jefferson
Coccnty v. Wash. Dept. of Ecol., 511 U.S. 700 (1992) (discussing State authority under section 401
of the federal Clean Water Act regarding afederally-licensed hydropower proj ect). Nonetheless, we

Mr. Qualkenbush
February 5, ?008
Page 2 of 2
believe that the State has and is continuing to take wise steps within the scope of the State's authority
in the context of previous and ongoing relicensings, including the APGI process.
The State, including the Attorney General's Office, is working diligently to promote sound,
equitable, and lawful use of the resources of the Yadkin River. Thank you for your input on this
matter.
Sincere ,
Marc Bernstei
Special Deputy Attorney General
cc: Jim Mead
John Dorney