NC issues 401 Water Quality Certificate for Yadkin Project

The State of North Carolina issued a 401 water quality certificate the Yadkin Project on Friday, October 23. 

"We are pleased the State of North Carolina has issued a water quality certificate for the Yadkin Project and we are in the process of reviewing it," said Ray Barham, APGI Relicensing Manager for the Yadkin Project. "The certificate clears the way to a FERC license that will allow us to implement enhanced water quality technology and additional environmental and recreational benefits promised by the Relicensing Settlement Agreement. We have been good stewards of the watershed for nearly 100 years and remain committed to meeting North Carolina water quality standards."

Click here to read the State's press release.

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.

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.