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Proposed outline for meeting with Salisbury 9/14/06
Subject: Proposed outline for meeting with Salisbury 9/14/06
From: "Jeff Jones" <[e-mail]>
Date: Mon, 21 Aug 2006 12:49:49 -0400
To: <[e-mail]>
CC: <[e-mail]>, <[e-mail]>
Mr. Dorney,
Below is a proposed outline for our meeting to discuss the adverse impacts of Alcoa's
Yadkin Hydro-electric Project.
Thursday, September 14, 2006 1:30 - 3:30 (approx.)
DWQ Offices at 2321 Crabtree Blvd., Raleigh, NC 27604 (Parkview Bldg)
Review of reservoir hydraulics and sediment transport - Dr. Martin
Doyle, UNC-CH (if class schedule permits) or Jeff Jones, SRU
Questions/ discussion
-Short Break-
Review of Alcoa and Salisbury's previous HEC-RAS models and
overview of HEC-6 modeling - Jeff Jones, SRU
Questions/ discussion
Policies on WQC conditions: mitigation of impacts on municipal water
supply - Randy Tinsley, environmental counsel for Salisbury
Questions/ discussion
If you have any questions or comments, please feel free to contact me
Best regards,
Jeff Jones
Senior Engineer
Salisbury-Rowan Utilities
[phone]
[e-mail]
? \ ?,O?
V1

?d
1 of 1 9/14/2006 11:11 AM
Advance Materials for Salisbury Meeting 9/14/06
Subject: Advance Materials for Salisbury Meeting 9/14/06
From: "Jeff Jones" <[e-mail]>
Date: Tue, 12 Sep 2006 16:36:54 -0400
To: <[e-mail]>
CC: <[e-mail]>
Mr. Dorney,
Attached are a couple of files as advance materials for our meeting.
Attachment 1: Basic Principles of Reservoir Sedimentation
Attachment 2: City of Salisbury comments on Alcoa Draft License Application
Attachment 3: SRU Technical Report High Rock Lake Sedimentation and Flooding
We look forward to seeing you on Thursday.
Best regards,
Jeff Jones
Senior Engineer
Salisbury-Rowan Utilities
[phone]
[e-mail]
Content-Description: Basic Principles of Reservoir Sedimentation - Martin Doyle.pdf
Basic Principles of Reservoir Sedimentation - Martin Doyle.pdf Content-Type: application/octet-stream
Content-Encoding: base64
Content-Description: City of Salisbury comments on Alcoa DLA - Jan 2006.pdf
City of Salisbury comments on Alcoa DLA - Jan 2006.pdf Content-Type: application/octet-stream
Content-Encoding: base64
Content-Description: SRU_Technical_Report_High_Rock_Lake_Sedimentati
ISRU_Technical_Report_High_Rock_Lake_Sedimentation_and_Flooding_Jan_2006.pdf Content-Type: application/octet-stream
Content-Encoding: base64
1 of 1 9/14/2006 11:09 AM
Sa/isb?ry-R?wan
UTILITIES
MEMORANDUM
To: Matt Bernhardt
Cc: David Treme, Randy Tinsley
From: Jeff Jones
Date: March 7, 2006
Subject: Review of Alcoa's Overview of Flooding Studies
I have reviewed Alcoa's document "An Overview of Flooding Issues at the Confluence of the Yadkin
and South Yadkin Rivers", February 2006 (Alcoa Overview) and the following documents that Alcoa
later distributed to relicensing stakeholders in response to stakeholder questions: (1) Review of January
1988 Flood of Yadkin River prepared for Yadkin, Inc. February 1998 Stone & Webster; (2) May 6, 1998
letter from Jerrold Gotzmer, FERC, to Ron Qualkenbush; and (3) June 18, 2003 letter from J. Mark
Robinson, FERC, to David Treme, Ron Qualkenbush, and Milton Crowther.
The Alcoa documents present no data or modeling outputs that contradict the City of Salisbury's
Technical Report "High Rock Dam and High Rock Lake Sedimentation Flooding Effects as Estimated
Using HEC-RAS Modeling", January 2006 (Salisbury Report). Alcoa modeled a narrower set of flow
and bathymetric conditions. The Alcoa and Salisbury outputs for these are identical.
Little reduction in flooding during moderate to high flows (>30,000 cfs) is expected from a combination
of moderate lake level decrease (10 feet) and dam discharge that matches reservoir inflow. However,
the Alcoa Overview states that "the [confluence] would experience virtually the same level of flooding
even if the dam at High Rock Reservoir did not exist." This statement is incorrect and misleading. The
City of Salisbury should not rely on it. If High Rock Reservoir did not exist, there would be no High
Rock Lake sediment delta, and no flooding effects from the sediment delta. The Salisbury Report
documents a very substantial reduction in flooding if High Rock Reservoir (and, necessarily, the High
Rock Reservoir sediment delta) "did not exist". The Alcoa documents ignore High Rock Lake's
formation of a sediment delta and the flooding effects of the sediment delta.
The City of Salisbury should also be aware that the Alcoa Overview refers to Alcoa ownership of up to
25 vertical feet of floodplain rights. This is incorrect in regard to Salisbury's Water Pump Station Tract,
where Alcoa only owns flood rights below elevation 655 APGI Datum.
1 Water Street Salisbury-Rowan Utilities Department Telephone [phone]
Salisbury, NC 28144 Utilities Engineering Fax [phone]

AN OVERVIEW OF FLOODING ISSUES
AT THE CONFLUENCE OF THE YADKIN AND SOUTH YADKIN RIVERS
CONDITIONS WHICH CAUSE FLOODING
AT THE CONFLUENCE OF THE YADKIN & SOUTH YADKIN RIVERS
• The ground becomes saturated during periods of heavy precipitation (rainfall),
resulting in increased runoff into, and increased amounts of water flowing down
the Yadkin and South Yadkin Rivers.
Water flow can be restricted as it moves downstream, causing the water to back
up in the river and increase the water level at, and upstream of the restriction.
There is a convergence of the two rivers. The principal flow is from the
main channel of the Yadkin River. Where the South Yadkin River merges
with the Yadkin River, there is a further increase of water elevation in the
immediate area and upstream associated with the combining flow.
There are two sharp bends in the Yadkin River downstream from the
point where the two rivers converge. These bends (located
approximately one and five river miles downstream) cause water levels
upstream to rise during periods of high flow due to the water changing
direction of flow.
• The Yadkin River section is narrow for a length of approximately five
river miles downstream of the rivers' confluence. The narrow river
conditions in this area cause water levels to rise and the river to flow
outside their banks during periods of high flow. The overbank flow
results in additional resistance to flow and increases upstream water
elevation.
Given the conditions discussed above, a rapid and significant increase in
streamflow can lead to flooding conditions.
ACTIONS TAKEN BY ALCOA-YADKIN DURING HIGH ST REAMFLOW EVENTS
Alcoa-Yadkin constantly monitors incoming streamflow at USGS gauging
stations and the water level at the High Rock Dam. Based on these readings,
Alcoa-Yadkin plans accordingly to prevent the water level from exceeding full
pool level at the High Rock Dam (655 feet - Yadkin datum).
February 2006
• During normal operations, Alcoa-Yadkin uses the discharge capacity of its
turbine generators to release water downstream.
• During "normal" high streamflow events (characterized as less than 150,000 cfs);
Alcoa-Yadkin opens the floodgates based on river flow and according to a
predetermined schedule as water levels begin to approach full pool (655 feet) on
High Rock Reservoir.
• When extraordinary flooding is anticipated (more than 150,000 cfs), Alcoa-
Yadkin operates the floodgates according to a predetermined schedule approved
by FERC (listed below). This floodgate schedule is designed to quickly pass
water through the dam while protecting it from failure.
FLOODGATE OPENING SCHEDULE
655.1 feet Gates 1-10 opened to 4 feet
655.6 feet Gates 1-10 opened to 8.5 feet
655.7 feet Gates 1-10 opened to 13.5 feet
655.8 feet Gates 1-10 opened to 19 feet
655.9 feet Gates 1-2 opened to 24 feet
Gates 3-10 opened fully to 32-33 feet
A SUCCESSFUL TRACK RECORD
By taking proactive action and opening floodgates in anticipation of
increased streamflow, Alcoa-Yakin has a proven track record of preventing
water levels from exceeding hill pool at High Rock Reservoir.
February 2006 2
BACKGROUND INFORMATION REGARDING PROPERTY AROUND
THE CONFLUENCE OF THE YADKIN AND SOUTH YADKIN RIVERS
• Property located around the upper end of High Rock Reservoir, where the
Yadkin and South Yadkin Rivers converge, is approximately 20 river miles
upstream of High Rock Dam.
• The property is located in a Federal Emergency Management Agency designated
flood zone. Officials with the Federal Energy Regulatory Commission have
explained that natural flooding of this property may be expected to occur fairly
regularly.
• Alcoa owns as much as 25 vertical feet of flood plain rights in many areas near
the confluence of the Yadkin and South Yadkin Rivers.
• Following a complaint by an adjoining property owner in February 1998, Alcoa-
Yadkin asked an independent, FERC-approved consultant to investigate the
concerns. The consultant invested considerable effort to prepare a hydraulic
analysis that concluded the operation of spillway gates at the High Rock Dam is
not responsible for upstream flooding.
Furthermore, the study concluded that (1) altering project operations during
future flood events would have no significant influence on the depth of flooding
at the property in question, and (2) the property would experience virtually the
same level of flooding even if the dam at High Rock Reservoir did not exist.
• The findings of the independent study were carefully analyzed - and endorsed -
by FERC officials. In addition to reviewing this work, FERC has conducted an
independent analysis using the USCAE HEC-RAS 3.1 model. This analysis
confirmed the results of Alcoa-Yadkin 's independent consultant.
February 2006 3
J
PHOTOS

o ?L5 r ?

The photos shown below were taken on February 4, 2004 at the confluence of Yadkin
and South Yadkin Rivers. On this day, as part of a relicensing study, the water level at
High Rock Reservoir was more than 15 feet below full. These photos clearly show water
levels at full bank and the presence of overhanging vegetation, demonstrating that little
correlation exists between water levels at the High Rock Dam and water levels
upstream.
February 2006
4
.,1.M,
FERC HISTORY & FINDINGS
RELATING TO YADKIN RIVER FLOODING
1998 EVENTS
In February 1998, a property owner contacted the Federal Energy Regulatory
Commission to raise concerns about flooding events at his property near the
confluence of the Yadkin and South Yadkin rivers in January 1998. The property
owner believed that the manner in which Alcoa-Yadkin operated the dam at
High Rock Reservoir caused the flooding at his property, located approximately
20 river miles upstream near the confluence of the Yadkin and South Yadkin
Rivers.
In response to these concerns, Alcoa asked an independent, FERC-approved
consultant to study how the water level in the m ain body of High Rock Reservoir
impacts water levels located upstream near the confluence of the Yadkin and
South Yadkin Rivers.
The consultant prepared a hydraulic analysis of the Yadkin River between the
dam at High Rock Reservoir and the confluence of the Yadkin and S outh Yadkin
Rivers. The study examined the correlation between water levels at the two
points by simulating a variety of flood conditions and reservation elevations.
FERC officials closely analyzed - then endorsed - the study's findings.
The study found that the High Rock Reservoir elevation does not have a
significant influence on water levels at the property in question during flood
events. In fact, FERC came to two notable conclusions:
1. Altering project operations during future flood events would have no
influence on the depth of flooding at the site.
2. The property would experience the same level of flooding even if the
dam at High Rock Reservoir did not exist.
The study determined that the flooding at the property is caused by the large
volume of water coming down the rivers and joining together near the property.
The problem is accentuated by two constrictions in the river channel located in
the area.
In a May 6, 1998 letter, FERC Atlanta Regional Office Director Jerrold W.
Gotzmer concluded that "based on the available information and analyses,
Yadkin, Inc., operated the reservoir properly during the flood event."
February 2006
2003 EVENTS
In April 2003, following one of the highest recorded streamflows in Yadkin River
history, FERC was contacted on three separate occasions about flooding of the
Yadkin River in March 2003. FERC received telephone calls from two adjoining
property owners (April 11 and April 15) and a letter from David Treme,
Salisbury City Manager (April 17). All three parties expressed concern about
Alcoa-Yadkin 's operation of the dam at High Rock Reservoir and the impact on
upstream flooding events.
• FERC officials decided to conduct additional studies regarding the water levels
between the dam at High Rock Reservoir and the confluence of the Yadkin and
South Yadkin Rivers. The FERC staff conducted its own hydraulic analysis using
the US Army Corps of Engineer computer model HEC-RAS 3.1
The FERC study determined that the operation of the spillway gates at High
Rock Dam influences the water surface elevation by six inches or less at the
confluence of the Yadkin and South Yadkin Rivers.
• In its final analysis, FERC concluded that Alcoa-Yadkin operated the reservoir in
accordance with the license requirements and determined that the operation of
the spillway gates at High Rock Dam does not have a significant influence on
water levels at the confluence of the Yadkin and South Yadkin Rivers.
February 2006 6
BROOKS PIERCE
BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, LLP
Attorneys at Law
MEMORANDUM
To: Mr, John Dorney
Division of Water Quality
North Carolina Department of Environment and Natural Resources
FROM: V. Randall Tinsley
Environmental Counsel for City of Salisbury
DATE: September] 3, 2006
RE: Water Quality Certification Conditions for Hydropower Pollution
INTRODUCTION
Any water quality certification for High Rock Dam should require sedimentation
and flood mitigation to protect Salisbury's designated and existing water supply use in
the Yadkin River because:
o Sediment is a pollutant that High Rock Dam concentrates and increases in a several-
mile reach of the Yadkin River, including the stream segment classified Water Supply
Watershed (WS-IV) Critical Area (Stream Index # 12-(107.5)), at Salisbury's intakes.
o High Rock Dam's concentration and increase of sediment constitutes water pollution
that is subject to the State of North Carolina's authority under Section 401 of the
Clean Water Act.
o High Rock Dam's water pollution will cause the violation of water quality standards
and related requirements of North Carolina law, including the degradation and short-
term or long-term preclusion of the water supply use of WS-IV CA waters.
o The violations can be prevented by implementing one or more sedimentation and
flood mitigation measures, such as the following:
Modify the operations of the source of the water pollution (change dam
operations to restore sediment transport function); or
• Modify the water pollution (remove the sediment build up or cut a flood-relief
channel through it); or
Modify Salisbury's existing, designated water supply use of the Yadkin River
in order to reduce the degradation and prevent the loss of that use (require
maintenance dredging around Salisbury's intakes and flood-proof or relocate
the water pump station).
This memorandum, along with a September 14, 2006 presentation on reservoir
sedimentation by City of Salisbury, is intended to initiate a dialogue between the City of
Salisbury and the Division of Water Quality ("DWQ") regarding the water quality
certification for High Rock Dam. As the dialogue progresses, the City of Salisbury is
prepared to provide additional information and analyses, as needed.
DISCUSSION
1. The Salisbury Water Pump Station and High Rock Dam
High Rock Dam causes the concentration and increase of a pollutant, sediment,
that will violate the water quality standards that protect Salisbury's designated, existing
water supply use of Class WS-IV and WS-IV CA waters of the Yadkin River.
History. Salisbury constructed the Salisbury Water Pump Station in 1917 at the
confluence of the Yadkin and South Yadkin Rivers. The pump station is the water supply
source for most of Rowan County (about 50,000 citizens). Alcoa built High Rock Dam
in 1927, approximately 19 miles downstream of Salisbury's water pump station. When
Alcoa constructed High Rock Dam it only acquired from Salisbury the right to flood up
to the banks on the pump station tract (to an elevation of 623.9 feet NGVD29). See City
of Salisbury Memorandum to Alcoa, Comments on Alcoa's Draft License Application for
FERC Project No. 2197 (January 4, 2006)("DLA Comments"). The land at the pump
station facilities is at elevation 630 NGVD29, where Alcoa has no flood rights. See DLA
Comments.
Yadkin River Sediment Transport Function. The transport of sediment is a
natural function of the Yadkin River that does not degrade or preclude Salisbury's use of
the Yadkin River for water supply. Transport of finer sediment occurs over a wide range
of flows, including relatively lower flow conditions. The Yadkin River transports coarser
sediment during higher velocity river flows (with a return frequency of roughly 2 years or
more). Natural sediment transport would maintain a relatively thin layer of sediment in
the channel that would not bury Salisbury's intakes and would not create the sediment
delta that backs up the Yadkin River flows onto the pump station. The pump station
would not be threatened by flooding, even during a flow equal to the flow of record (a
500-year event). See DLA Comments and City of Salisbury's September 14, 2006
presentation to DWQ.
Hydropower Water Pollution. As presently operated by Alcoa, High Rock Dam
destroys the Yadkin River's natural sediment transport function by slowing the river
flows that would otherwise transport the coarser sediment downstream. Salisbury has
published and provided to DENR, FERC, Alcoa and others, reports that document
adverse effects of the Yadkin Project. See, e.g., attachments to DLA Comments.
Further, Salisbury has commissioned a HEC-6/HEC-RAS study, currently underway, that
will provide state-of-the-art predictions of the Yadkin Project's sedimentation and
flooding effects throughout the term of a new license.
The Yadkin Project's water pollution includes the following:
(1) Creation, maintenance, and continuing growth of a huge accumulation of
sediment (sediment delta) that chokes several miles of the Yadkin River
channel;
(2) Conversion of aquatic habitat to terrestrial habitat (islands within the
sediment delta, stabilized by forestation);
(3) Burying of the Salisbury intakes that will cut-off the intakes from the
waters of the Yadkin River; and
(4) River flow obstruction that will flood and render the pump station
unusable for several weeks or months each time the flooding occurs.
In 1988, both intakes were completely cut-off from the Yadkin's waters by
accumulated sediment, after sand mining was interrupted in 1984. Emergency
excavation was necessary to prevent shut-down of the water supply system. Since 1984,
sand mining has protected one intake, but the other intake remains almost completely
buried. See DLA Comments. In 2003, during a relatively minor high flow event (less
than a 25-year return frequency) waters came within about 18 inches of entering the
water pump station high voltage switching equipment room. See DLA Comments.
Hydropower License. A federal license for the Yadkin Project (including High
Rock Dam) was issued in 1958, prior to the adoption of the Clean Water Act and other
environmental protection statutes. The license expires in 2008. Alcoa applied for a new
license for the Yadkin Project on April 25, 2006. We understand that Alcoa has not yet
filed an application for a water quality certification.
IL Environmental Management Commission's Duty to Administer
North Carolina's Authority Under Section 401 of the Clean Water
Act
The General Assembly has given the Environmental Management Commission
the power and duty to "administer the State's authority under 33 U.S.C. § 1341 of the
federal Clean Water Act." N.C.G.S. § 14313-282(a)(1)(u). The State's Section 401
authority is substantial.
State certifications under § 401 are essential in the scheme to preserve
state authority to address the broad range of pollution.... These are the
very reasons that Congress provided the States with power to enforce "any
other appropriate requirement of State law," 33 U.S.C. § 1341(d), by
imposing conditions on federal licenses for activities that may result in a
discharge....
&D. Warren Company v. Maine Board of Environmental Protection, 126 S. Ct. 1843,
1853 (2006).
The General Assembly did not authorize the Environmental Management
Commission to restrict, narrow, or redefine the State's authority under Section 401, but
only to administer (i.e., manage and implement) North Carolina's authority.
The State's broad authority is established in Section 401 of the Clean Water Act
and explained in two opinions of the U.S. Supreme Court (see Part III below). Some of
the features of North Carolina's Section 401 authority include the following:
(1) A federal license for hydropower activity must have a State water quality
certification.
(2) Certification conditions apply to hydropower activity as a whole, not merely a
discharge.
(3) Hydropower sediment pollution is subject to certification conditions.
(4) North Carolina has appropriate requirements of State law that should be enforced
in the High Rock Dam water quality certification:
a. water quality standards that, if enforced, will protect Salisbury's
designated, existing water supply use from High Rock Darn's sediment
pollution; and
b. other requirements of State law that, if enforced, will protect Salisbury's
designated, existing water supply use from High Rock Dam's sediment
pollution.
III. Overview of North Carolina's Authority Under Section 401 of the
Clean Water Act
Section 401 of the Clean Water Act gives the State of North Carolina full
authority to require the applicant for a federal license for operation of High Rock Dam to
mitigate the sedimentation and flooding effects of High Rock Dam on the Salisbury
Water Pump Station, as requested by the City of Salisbury.
Federal License for Hydropower Activity Must Have State Water Quality
Certification. Section 401 of the Clean Water Act requires a water quality certification
before a federal license may be issued for the operation of facilities that may result in a
discharge, including federally-licensed hydroelectric dams, such as High Rock Dam.
4
The issue in this case is whether operating a dam to produce
hydroelectricity "may result in any discharge into the navigable waters" of
the United States, If so, a federal license under § 401 of the Clean Water
Act requires state certification that water protection laws will not be
violated. We hold that a dam does raise a potential for a discharge, and
state approval is needed.
S. D. Warren Company v. Maine Board of Environmental Protection, 126 S. Ct. 1843,
1846 (2006).
Certification Conditions Apply to Hydropower Activity as a Whole, Not
Merely a Discharge. A certification's limitations and requirements apply to the
applicant's activities, not merely to a discharge associated with the activity.
The language of this subsection [401(d)] contradicts [the] claim that the
State may only impose water quality limitations specifically tied to a
"discharge." The text refers to the compliance of the applicant, not the
discharge. Section 401(d) thus allows the State to impose "other
limitations" on the project in general to assure compliance with various
provisions of the Clean Water Act and with "any other appropriate
requirement of State law."... [Section] 401(d) is most reasonably read as
authorizing additional conditions and limitations on the activity as a whole
once the threshold condition, the existence of a discharge, is satisfied.
PUD No. 1 of Jefferson County v. Washington Department of Ecology, 114 S.Ct, 1900,
1909, 511 U.S. 700 (1994). Accordingly, EMC rules for water quality certifications
"outline the application and review procedures for activities that require certification."
15A NCAC 2H.0501(b)(emphasis added). See also 15A NCAC 2H.0502(a)(3)("activity
for which certification is sought"), 2H.0502(a)(4)("nature of the activity to be conducted
by applicant").
. Hydropower Sediment Pollution is Subject to Certification Conditions.
Sediment transported in and by a river is a pollutant. 33 U.S.C. § 1362(6)( ... pollutant'
means ...rock, sand,..."). EPA identifies sediment as a pollutant. See, e.g., 40 CFR §§
35.1620-2(b)(5)(i)(F)(cause of impairment... sediment or other pollutants),
122.26(a)(2)(ii)("pollutants, including sediment"), 122.32(e)(3)("pollutants of concern"
include sediment), 123.35(d)(iii)("pollutants of concern" include sediment). Accord 15A
NCAC 2B.0231(a)(3)( "sediments... or other pollutants."). Further, the North Carolina
definition for "waste" specifically includes "sediment." N.C.G.S. § 143-213(18). The
term "waste" and "pollutant" are used interchangeably. For example, the North Carolina
definition for "point source" refers to "wastes," N.C.G.S. § 143-213(24), while the
federal definition uses the term "pollutants" instead of "wastes." 33 U.S.C. § 1632(14).
Large hydropower impoundments cause water pollution by increasing and
concentrating sediment in upstream river reaches by disrupting a river's sediment
transport function. The U.S. Supreme Court recently explained,
Moreover, § 304 of the [Clean Water] Act expressly recognizes
that water "pollution" may result from "changes in the movement, flow, or
circulation of any navigable waters ..., including changes caused by the
construction of dams." 33 U.S.C. § 1314(f).
PUD No. I of Jefferson County v. Washington Department of Ecology, 114 S.Ct. 1900,
511 U.S. 700, 719-20 (1994). Further, in regard to water quality certifications for
hydroelectric dams, the Supreme Court stated that:
the Act does not stop at controlling the `addition of pollutants,' but deals
with `pollution' generally, see § 1251(b), which Congress defined to mean
`the man-made or man-induced alteration of the chemical, physical,
biological, and radiological integrity of water.'....
"State certifications under § 401 are essential in the scheme to preserve
state authority to address the broad range of pollution...."
S. D. Warren Company v. Maine Board of Environmental Protection, 126 S. Ct. 1843,
1852-53 (2006).
Accordingly, the North Carolina General Assembly has defined "water pollution"
in a manner that includes th(, sediment effects of High Rock Dam:
The term "water pollution" means the man-made or man-induced
alteration of the chemical, physical,-biological, or radiological integrity of
the waters of the State, including, but specifically not limited to,
alterations resulting from the concentration or increase of natural
pollutants caused by man-related activities.
N.C.G.S. § 143-213(19). Thus, the Clean Water Act and North Carolina statutes lead to
the same conclusion: High Rock Dam sediment impacts constitute water pollution that
can and should be addressed in a water quality certification. If not addressed, the
pollution will cause violations of water quality standards and other appropriate
requirements of North Carolina law as discussed below.
Water Quality Standards. The State of North Carolina has authority to set forth
and enforce in the High Rock Dam certification any "appropriate requirement of State
law." 33 U.S.C. § 1341(d). "State water quality standards adopted pursuant to § 303"
are appropriate for enforcement by way of certification conditions. PUD No. 1 of
Jefferson County. v. Washington Dept. of Ecology, 511 U.S. 700, 713, 114 S.Ct. 1900
(1994).
Water Quality Standards: Protection of Designated Water Supply Uses.
North Carolina water quality standards include the designated uses of the State's waters.
The best usage of WS-IV waters are as follows; a source of
water supply for drinking, culinary, or food-processing
purposes....
15A NCAC 213.0216(1). Salisbury's water supply use is both a designated use and an
existing use of the Yadkin River that will be degraded and destroyed by sediment
pollution from the operation of High Rock Dam. 15A NCAC 28.0309 (Water Supply
Watershed (WS-IV) Critical Area, Stream Index # 12-(107.5)). Certification conditions
should be used to enforce this water quality standard that will be violated by High Rock
Dam operations.
According to the rules, certification shall be granted or denied. 15A NCAC
21-1.0507(a). A certification is granted where the Director determines that "water quality
standards are met, including protection of existing uses." 15A NCAC 2H.0506(a). The
certification should include conditions that the Director deems necessary to "insure
compliance with," among other things, Section 303 of the Clean Water Act, which
includes North Carolina's water quality standards. 15A NCAC 2H.0507(c). Such
conditions include "replacement or mitigation of unavoidable losses of existing uses,"
15A NCAC 2H.0506(h), and in this instance are to be coordinated with FERC. 15A
NCAC 214.0506(h)(1).
In fact, the State of North Carolina has an affirmative duty under the Clean Water
Act to require that High Rock Dam be operated in a manner that protects the designated,
existing water supply use of the Yadkin River at Salisbury's water pump station.
Moreover, § 304 of the Act expressly recognizes that water "pollution"
may result from "changes in the movement, flow, or circulation of any
navigable waters ..., including changes caused by the construction of
dams." 33 U.S.C. § 1314(f). This concern with the flowage effects of
dams and other diversions is also embodied in the EPA regulations
[governing the States' water quality standards], which expressly require
existing dams to be operated to attain designated uses. 40 CFR §
131.10(g)(4) (1992).
PUD No. 1 of Jefferson County v. Washington Department of Ecology, 114 S.Ct. 1900,
511 U.S. 700, 719-20 (1994)(emphasis added). Thus, the certification for High Rock
Dam should include conditions that protect Salisbury's designated water supply use that
will be degraded or destroyed by High Rock Dam.
Water Quality Standards: Prohibition of Sources of Water Pollution that
Preclude Water Supply Use. The water quality standards for the Yadkin River
specifically prohibit sources of water pollution, such as High Rock Dam, from precluding
a designated water supply use.
Sources of water pollution which preclude any of these uses [including
water supply use] on either a short-term or long-term basis shall be
considered to be violating a water quality standard.
15A NCAC 28.0216(2). A water quality certification should not be issued for the
operation of High Rock Dam as proposed by Alcoa, see Alcoa's License Application
(filed at FERC on April 25, 2006), because it is a source of pollution that will preclude
the use of the WS-IV waters as a "source of water supply" on at least a short-term basis.
Moreover, the EMC and DWQ are subject to the mandate that every State agency
shall act in a manner consistent with the policies and purposes of the Water Supply
Watershed Protection Act and the statewide requirements adopted by the [Environmental
Management] Commission. N.C.G.S. § 143-214.5(i). The WS-IV standard quoted above
is a statewide requirement; and the issuance of a water quality certification is "an action"
that must be consistent and compliant with the statewide WS-IV standards. Consistency
and compliance can only be achieved if the certification for High Rock Dam includes
conditions that prevent the violation of the standard.
Water Quality Standards: Antidegradation Policy. The North Carolina
Antidegradation Policy mandates the maintenance and protection of (1) existing instream
water uses, such as Salisbury's use of the waters as a source for water supply, and (2) the
water quality necessary to protect the existing uses. 15A NCAC 2B.0201 (including the
incorporation of 40 CFR § 131.12). Both of these requirements will be violated by High
Rock Dam unless appropriate mitigation is required by the certification for High Rock
Dam. In fact, High Rock Dam's operation is an "offensive condition" pursuant to North
Carolina water quality standards: "any condition or conditions resulting from the
presence of... other wastes within the waters of the state or along the shorelines thereof
which... shall damage private or public water supplies or other structures...." 15A
NCAC 2B.0202(5). "Waste" includes sediment. 15A NCAC 213.0202. No water quality
certification should be issued where the activity receiving the certification will cause an
offensive condition.
Other Appropriate Requirements. As discussed above, "state water quality
standards adopted pursuant to § 303," are appropriate for enforcement by way of
certification conditions. PUD No. 1 of Jefferson County v. Washington Dept. of Ecology,
511 U.S. 700, 713, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994). However, other
requirements of North Carolina law that protect designated, existing, water supply uses
are also "appropriate requirements" that should be set forth in a water quality
certification.
Under North Carolina statutes, violation of a local ordinance is a misdemeanor.
N.C.G.S. § 14-4 (a). A City of Salisbury ordinance makes it "unlawful for any person
to... interfere with any water or sewer pipes belonging to the city, or to... injure... any
part of the utilities system." Salisbury Code of Ordinances § 25-7(c). Alcoa's operation
of High Rock Dam interferes with Salisbury's water pipes and injures part of the utilities
system. Certification conditions to remedy the interference and injury are appropriate
requirements of State law that can and should be addressed by the certification for High
Rock Dam.
North Carolina law prohibits the intentional obstruction "in any way" of a
waterline. N.C.G.S. § 143-152. The Yadkin Project's sediment accumulation obstructs
Salisbury's waterline. Having received copies of Salisbury's study reports and having
been briefed at length by a recognized reservoir sedimentation expert, Dr. Martin Doyle
(UNC-Chapel Hill), Alcoa has direct knowledge that Alcoa's existing operation of High
Rock Dam causes the obstruction of Salisbury's waterline, but has apparently not made
any changes in its operations despite such knowledge. If Alcoa's knowledge is sufficient
to establish intentionality, Alcoa's obstruction of one of Salisbury's intakes by the
operation of High Rock Dam violates the statute. If not for third-party sand-mining, both
intakes would be obstructed.
Inadequate Land Ownership. As presently proposed, Alcoa's hydropower
activity will require the use of Salisbury's pump station tract for inundation, but Alcoa
owns no flood rights on the pump station tract. Alcoa cannot satisfy the application
requirement that Alcoa own the land that will be used by its activity. 15A NCAC
2H.0502(f).
The operation of High Rock Dam as currently proposed, will violate North
Carolina water quality standards and other requirements of North Carolina law for the
protection of water supplies and water supply infrastructure. Any water quality
certification for the Yadkin Project should include conditions that remedy or prevent
those violations.
IV. Water Quality Certification Requirements to Enforce North
Carolina Water Quality Standards and Appropriate
Requirements of State Law
Mitigation that may be effective certification conditions to enforce water quality
standards and other appropriate requirements of State law include the following (or
combinations of the following):
Modify dam operations. A change in dam operations would re-establish a more
natural sediment transport function. If water releases were required through High Rock
Dam to draw-down the lake in advance of flows that equal or exceed a specified
threshold, water velocities would be increased. If the draw-down is great enough, the
increased velocities would occur over a long enough stream reach to allow resumption of
coarse sediment transport by the Yadkin River and the possible movement of the
sediment delta further into the lake and away from the WS-IV and WS-IV CA waters
where Salisbury's water supply use is located. Salisbury believes this dam operation
modification would need to be coupled with prior logging and clearing of the sediment
delta to promote sediment transport and to prevent the transport of trees into High Rock
Lake.
Flood relief channel through the sediment delta. The establishment and
maintenance of a channel through the sediment delta may reduce the flooding effects and
reduce the likelihood of the loss of the water pump station.
Flood-proofing or relocation of pump station or pump station components.
The City of Salisbury has already spent approximately $500,000.00 to flood-proof the
pump station's most vulnerable component, its power supply, using a combination of
relocation and in-place flood-proofing. Additional effective flood-proofing and
component relocation measures may be identified. Relocation of the pump station would
provide the most effective protection of the pump station from loss.
Dredging to restore and protect intakes, Excavation of accumulated sediment
is required to rehabilitate one intake that is almost completely buried. In addition, the
continuation of sand mining in the vicinity of the intakes is needed (even if the third party
sand mining operation ceases operations in the area). For several years the sediment
delta has produced revenues for Alcoa, which has sold its sediment deposits to a third-
party sand mining operation. However, Alcoa should be responsible for ensuring that
sand mining is continued, regardless of Alcoa's revenue-producing arrangements or the
availability of a third party to do the sand mining.
CONCLUSION
Section 401 of the Clean Water Act and applicable North Carolina statutes and
rules require that any water quality certification for the High Rock Dam relicensing
(FERC Project No. 2197) include conditions to protect Salisbury's existing and
designated water supply use and prevent violations of North Carolina water quality
standards. Salisbury appreciates DWQ's consideration of this important issue and looks
forward to working with DWQ as it considers appropriate Section 401 certification
conditions.
10
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