RELICENSING ISSUE:
THE SECTION 401 WATER QUALITY CERTIFICATE
Alcoa-Yadkin must obtain a Section 401 Water Quality Certificate from the State of North Carolina before it can receive a new federal license. The N.C. Division of Water Quality issued and then revoked a 401 certificate to Alcoa-Yadkin. The State is now reviewing the 401 application and must act on it by May 8, 2009.
What is a 401 Certificate? As part of the federal relicensing process, FERC requires Alcoa-Yadkin to obtain a water quality certificate for the Yadkin Project from the State of North Carolina pursuant to the Clean Water Act (Section 401). This is commonly referred to as a 401 certificate.
What issues does a 401 Certificate address? The 401 focuses on whether the water being discharged from Alcoa-Yadkin’s dams meet North Carolina’s water quality standards. Alcoa-Yadkin plans to invest $240 million to upgrade the Yadkin Project’s power generators, increase dissolved oxygen levels and improve water quality as part of the Yadkin Relicensing Settlement Agreement. This will ensure discharges from the Yadkin Project meet North Carolina water quality standards.
Obtaining a 401 Certificate for the Yadkin Project:
A Timeline of Key Events
- Alcoa-Yadkin submitted an application for a Section 401 certificate to the N.C. Division of Water Quality (DWQ) on May 10, 2007. After six months of evaluation, DWQ issued a Section 401 Water Quality Certification to Alcoa-Yadkin on November 17, 2007.
- In January 2008, Stanly County appealed DWQ’s issuance of the 401 Water Quality Certificate. In statements filed on February 22, 2008, attorneys for the State of North Carolina defended DWQ’s work, stating that Alcoa-Yadkin “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.”
- In April 2008, State officials discovered that a required legal notice regarding its application for a water quality certificate was not published, as required by law. Alcoa-Yadkin had provided the information necessary for the publication of the notice. The lack of publication (a responsibility of DENR) was apparently an inadvertent oversight.
- As a result, the NC Division of Water Quality revoked Alcoa-Yadkin’s water quality permit, published the required public notice and agreed to accept public comments for a 15-day period ending on May 2, 2008.
- Because federal laws require the State to act on Section 401 applications within one year — before May 10, 2008, in this case — DWQ had little time to adequately review the public comments it received.
- At DWQ’s request, Alcoa-Yadkin withdrew and resubmitted its application for a Section 401 water quality certificate. The State now has until May 8, 2009 to take action on Alcoa-Yadkin’s application.
During this extended review period, DWQ has asked Alcoa-Yadkin to conduct additional studies involving water and sediment sampling. A study plan has been developed and work is expected to begin in August 2008.
