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STANLY COUNTY’S APPEAL OF APGI’S 401 WATER QUALITY CERTIFICATION
APGI submitted a request to the N.C. Division of Water Quality (DWQ) for Section 401 Water Quality Certification for the Yadkin Hydroelectric Project on May 10, 2007. This certification is required by the Federal Energy Regulatory Commission (FERC) pursuant to the Clean Water Act as part of the federal relicensing process. After six months of evaluation, DWQ issued Section 401 Water Quality Certification on November 17, 2007.
On January 17, 2008, Stanly County challenged DWQ’s issuance of the 401 Water Quality Certificate, and requested a Temporary Restraining Order and Preliminary Injunction against its issuance. In prehearing statements filed on February 22, 2008, attorneys for the State of North Carolina defended DWQ’s work, stating that Alcoa Power Generating Inc. “has provided adequate assurance that the work of the Yadkin Project will not result in a violation of applicable water quality standards and discharge guidelines.”
The Rationale Behind Stanly County’s Appeal
Stanly County claims that DWQ did not provide sufficient time for Stanly County to fully participate in the certification process. Furthermore, it claims that its concerns related to environmental issues in Stanly County were not adequately considered by DWQ before the water quality certification was issued.
In fact, Stanly County did not become actively involved in these proceedings until the 11th hour. The County did not express its concerns to DWQ until November 9, 2007 — nearly six months after APGI filed its application for water quality certification — and then sought a delay so it could develop and submit additional information. Having fully considered the water quality issues associated with APGI's operation of its dams and reservoirs, DWQ determined that Stanly County did not present information in its statement that justified further delays.
The Latest Developments:
Court Rejects Stanly County Request for Preliminary Injunction
An Administrative Law Judge denied Stanly County’s request for a Temporary Restraining Order and Preliminary Injunction on March 10, 2008. The ruling stated that Stanly County “failed to demonstrate both a likelihood of success on the merits in this proceeding and irreparable injury” as required by law.
Next Step: Court Hearing Scheduled for Week of May 5
A hearing regarding Stanly County’s appeal is currently scheduled for the week of May 5, 2008.
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