Judge overturns denial of Alcoa’s water quality certificate

A judge has ruled that the NC Division of Water Resources (DWR) exceeded its authority, acted erroneously and failed to act as required by law when it denied Alcoa Power Generating Inc. (APGI) a water quality certificate that is required to relicense its hydroelectric project along the Yadkin River. As a result, the denial has resulted in “additional and unnecessary delay” of water quality protections and improvements.   

Administrative Law Judge Selina Brooks granted APGI’s motion to overturn the denial of its application for a 401 water quality certificate for the Yadkin Hydroelectric Project in a May 29 order. The court ordered the state to review APGI’s application "as expeditiously as possible” and issue a decision within 30 days. Click here to read the ruling.  

“The judge concluded what we have known all along – the Division of Water Resources had no legitimate grounds to deny our water quality certificate. We urge the agency to follow its rules and act quickly to issue a water quality certificate for the Yadkin Project,” said Ray Barham, APGI Yadkin Relicensing Manager.

In the order, Judge Brooks stated that “there appears to be no factual dispute that [APGI] satisfied the substantive requirements for issuance of a water quality certification.” She ruled that the decision to deny APGI’s application was an arbitrary and capricious decision that resulted in “manifest unfairness” to APGI.

When APGI’s application for a water quality certificate was denied on August 2, 2013, it was not the result of “careful consideration” or “impartial decision-making.” In the order, Judge Brooks stated that DWR exceeded its authority by admittedly basing the denial on a dispute over ownership of the riverbed beneath the hydroelectric project rather than water quality issues.

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.

“This was never an issue about water quality. We have a proven plan in place to improve water quality and ensure compliance with the state’s water quality standards,” Barham said. “We are prepared to invest up to $80 million in the Yadkin Project to continue enhancing water quality in the Yadkin River.”

APGI and the State of North Carolina are currently involved in a lawsuit in U.S. District Court over the ownership of the riverbed. A federal judge resolved a key issue in the lawsuit in May when he ruled that the relevant section of the Yadkin River not navigable – a determination that prevents the State of North Carolina from asserting special ownership rights to the riverbed.