20070812 Ver 2_NC Water Rights Coalition Commends_20090520

Dorney, John
From: Massengale, Susan [[e-mail]]
Sent: Wednesday, May 20, 2009 11:16 AM
To: [e-mail]
Subject: FW: N.C. Water Rights Coalition Commends Yadkin Riverkeeper, Stanly County Suit To
Request Stay On Issuing Water Quality Certificate To Alcoa
Attachments: ATT00001.c
From: Kees, Diana
Sent: Wednesday, May 20, 2009 9:36 AM
To: Biser, Elizabeth; Freeman, Dee; Hardy, Cathy; Kees, Diana; Knight, David; Kritzer, Jamie; Smith, Robin; Thompson,
Mary; Wall, Steve; Wilder, Manly; [e-mail]; [e-mail]; Massengale, Susan
Subject: N.C. Water Rights Coalition Commends Yadkin Riverkeeper, Stanly County Suit To Request Stay On Issuing
Water Quality Certificate To Alcoa
N.C. Water Rights Coalition Commends Yadkin Riverkeeper, Stanly County Suit To Request Stay On
Issuing Water Quality Certificate To Alcoa
Charlotte -
RALEIGH, N.C. - The N.C. Water Rights Coalition (www.ncwaterrights.org) is commending the formal filing of a lawsuit
May 20 by both Dean Naujoks, the Yadkin Riverkeeper, and the Stanly County Board of Commissioners against the N.C.
Department of Environment and Natural Resources (DENR) for its failure to carry out its legal duties for a 401 Water
Quality Certification to Alcoa for the Yadkin Hydroelectric Project. The suit charges that DENR neglected to follow federal
Clean Water Act requirements and state provisions regarding water quality protections and environmental review in order
to issue the certification May 7, despite the agency's own reports that found "significant contamination" including PCBs at
the Alcoa site on Badin Lake, which is part of the Project that flows into the Yadkin River via Narrows Dam in Stanly
County. It requests that a judge in the state Office of Administrative Hearings grant a temporary restraining order and put
a stay on issuing the certification to allow time for a review, which would delay Alcoa from moving forward with its
licensing application with the Federal Energy Regulatory Commission (FERC) for another 50-year monopoly of control of
water rights on the Project.
As part of their argument for issuing a stay, Naujoks and Stanly County commissioners cite a recent hearing office report
by the Division of Water Quality (DWQ), which is part of DENR, that revealed that state acknowledged contamination in
the Project's swimming areas, found some PCBs which came from Alcoa's operations in the Project and recognized that
Alcoa is in violation of water quality standards for dissolved oxygen in the Project. They also claim the following:
• The N.C. Constitution and related state laws create a public trust to protect its waters, fish and related resources
for public use, and DENR failed to protect those resources in its limited review of Alcoa and its operations.
• DENR violated the N.C. Environmental Policy Act by improperly relying upon the Final Environmental Impact
Statement from the FERC under NCEPA instead of a separate NCEPA review. The FERC FEIS is inadequate for
use as a substitute for NCEPA analysis, and therefore DENR cannot reasonably rely on it to fulfill its obligations
underNorth Carolina law.
• DENR's decision does not insure protection of all water quality uses of the Yadkin River and does not comply
with the provisions of the Clean Water Act. .
• DENR failed to look at water quality within the entire 38-mile stretch of the Yadkin River that makes up the
Project. The Project includes powerhouses and dams at High Rock, Tuckertown, Narrows and Falls Reservoirs in
Davidson, Montgomery, Rowan and Stanly counties. DENR was required to ensure that the Project as a whole
will comply with water quality regulations, yet it studied only the tail end of the system.
• North Carolina's law prohibits government from granting exclusive privileges to private parties. Alcoa is a private
property that has a monopoly or exclusive privilege to control a public trust resource - the Yadkin River - and
thus the DENR certification for Alcoa violates this provision of the N.C. Constitution.
Alcoa must receive the state's water quality certification in order to continue its efforts to win licensing for the Project
through the FERC. If Alcoa receives the FERC license, it will have an exclusive monopoly on water rights to conduct
hydroelectric operations on the upper Yadkin River for another 50 years, and the opportunity to make millions in profits
selling electricity generated from waters belonging to North Carolina citizens. Unlike other power companies in North
Carolina, Alcoa is not required to operate under rules by the N.C. Utilities Commission, and in fact it sells much of its
electricity outside of the state on the power grid rather than to N.C. customers.
There is a process underway to offer an alternative stewardship of the Project via a bill establishing the Yadkin River
Trust, set up by the State of North Carolina. Already approved by the state Senate, it now awaits voting in the state
House. Gov. Bev Perdue has previously indicated her concerns about Alcoa's ownership of the Yadkin Hydroelectric
Project, so it is believed she will sign it into law if approved by the General Assembly.
Naujoks and the Stanly County Board of Commissioners have been strong opponents of allowing Alcoa to continue its
monopoly of the Project, as has the N.C. Water Rights Coalition, due in part to its poor environmental history with its
operation on the Yadkin River.
Related Links:
www.ncwaterrights.org
www.yadkinriverkeeper.org
www. en r. state. nc. us/index. htm
Quotes:
"If we do not contest the decision by DENR on this certification now, we will not have a chance to address the water
quality at the Project for another 50 years," said Nancy McFarlane, president of the N.C. Water Rights Coalition. "There
are serious contamination problems with the Yadkin Hydroelectric Project which DENR itself uncovered, yet the agency
seems content with issuing a license with only minor conditions that Alcoa must fulfill. That is not performing for the good
of the public inNorth Carolina, and we hope a restraining order will be granted so that this decision can be reviewed and
hopefully reversed in light of the facts about what is best for the Project's environmental needs now and in the future."
Diana Kees
Communications Director
N.C. Dept. of Environment and Natural Resources
16o1 MSC, Raleigh, NC 27699-i6oi
[phone]; fax [phone]o6o
Please note: my e-mail address has changed to diana.kees(a?ncdenr.gov .
E-mail correspondence to and from this address may be subject to the
North Carolina Public Records Law and may be disclosed to third parties.