Tuesday, September 29, 2015

Judge confirms Alcoa’s ownership of Yadkin River property and dismisses state’s lawsuit

Alcoa Power Generating Inc. (APGI) scored another key legal victory over the State of North Carolina in federal court Monday when a federal judge confirmed the company’s ownership of the Yadkin River property where it operates four hydroelectric dams. U.S. District Court Judge Terrence Boyle granted APGI’s motion for summary judgment and dismissed the state’s lawsuit seeking ownership of the riverbed beneath the dams. 

“The evidence, even viewed in the light most favorable to the State, overwhelmingly demonstrates that Alcoa has title to the bed of the Relevant Segment,” concluded Judge Boyle.

APGI successfully argued that the company has valid title to the riverbed and has been in actual, open, adverse, exclusive, and continuous possession of the property for more than 50 years.

“Alcoa is pleased with the court’s ruling affirming our ownership of the Yadkin River property,” said Ray Barham, APGI Relicensing Manager. “With this ruling we encourage the State of North Carolina to quickly issue the 401 water quality certificate so we can begin making investments in water quality improvements and bringing other significant benefits to the region once a new federal license is issued.”

This is the latest in a string of legal victories for APGI. Judge Boyle in April ruled in Alcoa’s favor that the relevant portion of the Yadkin River was not navigable, a crucial distinction that squashed the state’s argument that it was entitled to special property rights.

On Friday, September 25, a Wake Court Superior Court judge upheld a previous ruling that the N.C. Division of Environment and Natural Resources exceeded its authority, acted erroneously and failed to act as required by law when it denied APGI a 401 water quality certificate. The denial was overturned and the state agency has been ordered to act on APGI’s application within 30 days.

Monday, September 28, 2015

Court upholds ruling that State agency unlawfully denied water quality certificate for Alcoa dams

Court upholds ruling that State agency unlawfully denied water quality certificate for Alcoa dams

Wake County Superior Court judge upholds ruling by administrative law judge, orders agency to issue decision on Alcoa application within 30 days

Alcoa Power Generating Inc. (APGI) won a significant legal victory in Wake County Superior Court on Friday when a judge upheld a previous ruling that the N.C. Department of Environment and Natural Resources (DENR) wrongly denied a water quality certificate that is necessary to relicense the company’s dams along the Yadkin River.

Superior Court Judge Bryan Collins ruled that an administrative law judge was correct in finding that DENR exceeded its authority, acted erroneously and failed to act as required by law when it denied APGI’s application for a water quality certificate in August 2013. Judge Collins denied the state agency’s appeal and ordered DENR to reconsider APGI’s application and issue a decision within 30 days.

“We’re pleased the court has reaffirmed what we’ve known all along: the state had no legal reason to deny our application. We urge the state to follow the judge’s order and quickly issue a water quality certificate for the Yadkin Project,” said Ray Barham, APGI Relicensing Manager for the Yadkin Project.

Judge Collins notes that in the days leading up to DENR’s decision to deny APGI’s application, “DENR’s customary process of reasoned review collapsed under the pressure of 11th hour action by the Governor’s office and the (Department of Administration), agencies outside of DENR and having no direct responsibility for the protection of water quality or the environment.”

Before the Governor’s office inserted itself into the review process, Judge Collins says a final report recommended approving APGI’s application and issuing a water quality certificate for the Yadkin Project.

“DENR would have issued a merits based decision on the Application on August 2, 2013, likely issuing a 401 in APGI’s favor, but not for the secret intervention of the DOA and the Governor’s office into the process…” states Judge Collins ruling. “The undisputed facts recited in the Order demonstrate that DENR reversed course at the last minute, only after Executive Branch pressure and the 11th-hour filing of the Lawsuit.”

The NC Department of Administration filed a lawsuit against APGI on August 2, 2013, claiming ownership of the land under the Yadkin Project dams. The case is currently being considered in U.S. District Court by Judge Terrence Boyle.

The state’s failure to issue a water quality certificate has resulted in the unnecessary delay of water quality protections and improvements. APGI cannot move forward with its plans to invest up to $80 million on water quality improvements at the Yadkin Project until it receives a new federal license.

“We remain committed to meeting North Carolina water quality standards and have a proven solution to continue improving water quality at the Yadkin Project,” Barham said.

The issuance of a water quality certificate is a precondition to Federal Energy Regulatory Commission (FERC) issuing APGI’s new long-term license to continue generating clean, renewable energy at the Yadkin Project. FERC staff has previously recommended issuing a new license to APGI.

Monday, September 21, 2015

Hot, Dry Summer Pushes the Yadkin-Pee Dee River Basin into Drought Watc

Residents are asked to conserve water

The Yadkin-Pee Dee Drought Management Advisory Group (YPD-DMAG) announced today that because of months of hot temperatures and reduced rainfall, the Yadkin Pee-Dee River Basin has entered a drought watch stage.

Stage 0 of the Low Inflow Protocol (LIP) is a drought watch stage alerting the YPD-DMAG members to monitor conditions more closely.  It is the first of five drought stages outlined by the YPD-DMAG.

Water inflow into the Yadkin Basin is down nearly 50 percent from historical averages. Stages of LIP indicators are based on the following triggers:

* Water storage in the four-reservoir Yadkin Hydroelectric Project (operated by Alcoa Power Generating, Inc. (APGI)) and in the two-reservoir Yadkin-Pee Dee Hydroelectric Project (operated by Duke Energy) has declined.

* Stream flows feeding the reservoirs are well below normal.

* U.S. Drought Monitor trigger indicates most of the basin is experiencing moderate drought conditions.

The LIP is the drought management plan developed during the relicensing of the two hydroelectric projects to share responsibility and set priorities to conserve the limited water supply during drought conditions.  The LIP coordinates actions aimed at reducing water use from APGI’s High Rock Lake, Tuckertown Reservoir, Badin Lake and Falls Reservoir as well as Duke Energy’s Lake Tillery and Blewett Falls Lake to effectively buy time for rains to return and replenish the lake system’s usable water storage.

APGI and Duke Energy will monitor inflow and lake level conditions and work together to protect the water supply and other uses of the river system to limit the impact of drought on residents and businesses of the Basin.

APGI requested and received a temporary variance from the Federal Energy Regulatory Commission (FERC) to conserve water by reducing required minimum flows out of the Yadkin Project. 

The YPD-DMAG was established during relicensing to monitor drought status and to recommend coordinated actions for the DMAG members. Members include North Carolina and South Carolina resource agencies, federal resource agencies, Duke Energy, APGI, homeowner groups and water suppliers.  The YPD-DMAG meets at least monthly when conditions reach Stage 0 or greater of the LIP. For more information about lake levels and drought conditions, visit www.duke-energy.com/lakes/.asp for information on the Duke Energy lakes or www.alcoa.com/yadkin/en/info_page/reservoir_data.asp for information on the APGI lakes. 

Friday, August 28, 2015

AP: Judge weighs dumping Alcoa lawsuit

Alcoa returned to U.S. District Court in Raleigh Thursday for a hearing related to the State of North Carolina's lawsuit regarding ownership of the riverbed beneath the Yadkin Project.

Here's a media report from the Associated Press about the hearing.

Judge weighs dumping Alcoa lawsuit
August 27, 2015

A federal judge questioned Thursday whether North Carolina was acting like a “banana republic” with its lawsuit challenging whether Alcoa Inc. owns the riverbed under Yadkin River dams it has operated for as long as a century.
U.S. District Judge Terrence Boyle quizzed lawyers for the state and the aluminum giant in court for an hour as he considered whether to dismiss the case. The lawsuit filed in 2013 challenges whether Alcoa holds clear title to the riverbed that allowed it to build the four dams and perhaps one day sell them.
Boyle asked state attorney Donald Teeter whether the lawsuit sought to punish Alcoa for closing its Stanly County aluminum smelter in 2007 where hundreds of people once worked.
“Why isn’t this like some banana republic that confiscates property?” Boyle said. “This is really a thinly veiled power grab.”

Friday, July 31, 2015

Legislators urge Gov. McCrory to end lawsuit with Alcoa

NC House Rep. Justin Burr, a Republican representing Montgomery and Stanly counties, recently shared on Facebook a letter that was sent to Gov. McCrory from five legislators who represent the Uwharrie region. The letter urges the state to drop its lawsuit and instead work with Alcoa to renew its hydro license and work together to attract new jobs to the region.

“We are writing to ask you to end the state’s lawsuit against Alcoa Power Generating Inc. (APGI) in light of two significant legal rulings against the state,” the letter says.

“These rulings make it increasingly clear that state and federal laws do not support the position of your administration. Continuing the state’s legal efforts to acquire ownership of the riverbed property or delay granting APGI a water quality permit is an irresponsible use of taxpayer dollars – and it negatively impacts the citizens we represent.”

Thank you to Rep. Burr, Rep. Rayne Brown (R – Davidson), Rep. Carl Ford (R – Cabarrus, Rowan), Rep. Harry Warren (R – Rowan) and Rep. Sam Watford (R – Davidson).