The Stanly News and Press (Albemarle, NC)

August 2, 2013

State files lawsuit against ALCOA

Tiffany Thompson, Staff Writer

Friday, August 2, 2013 — The State of North Carolina Department of Administration filed a lawsuit Friday morning against ALCOA, stating that Alcoa Power Generating Inc. (APGI) should not have ownership rights to the property under the Yadkin River.

As a result of the lawsuit, North Carolina Department of Environment and Natural Resources (NCDENR) denied ALCOA’s 401 water quality certificate application Friday afternoon.

“The Yadkin River is a North Carolina river. We should be able to use it for North Carolina water needs and to create North Carolina jobs. The benefits of the Yadkin River belong to North Carolina’s people,” Gov. Pat McCrory said in a statement.

The state’s lawsuit, which was filed in Wake County Superior Court, requests that a Wake County judge rule that the state has the ownership rights to the river, and as a result, would have a stake in the hydropower project.

But officials with ALCOA said that Friday’s filing is “flat-out wrong” and that they intend to move the case to federal court.

“Ownership of submerged lands is a question of federal law and we will immediately begin the legal process to move it to federal court. This ownership has already been decided by Supreme Court in a 9-0 decision in 2012 (Montana PPL v Montana). APGI is confident in its ownership position and that it will be firmly established in court,” Kevin Anton, chief sustainability officer, said in a statement. He added that the company is disappointed with the state’s actions.

“Despite making ourselves available to the Governor, we are disappointed that we didn't have the opportunity to discuss this more fully with him before filing this suit.”

According to NCDENR, the ownership battle invalidates APGI’s application for a 401 water quality certification, which is needed in order for the company to gain a new 50-year license of the Yadkin Hydroelectric Project. APGI submitted the application Sept. 28, 2012.

“The division cannot consider the application to be a valid application until the issues of ownership of the submerged bed of the Yadkin River and the project’s dams are resolved by the parties or by a final order of the court in the pending lawsuit,” Tom Reeder, director of the NCDENR Division of Water Resources, wrote in an Aug. 2 letter to APGI.

According to NCDENR, once the ownership issues are resolved by the parties involved or by a final order of the court, the owner may then submit a new 401 water quality certificate application, which will be expedited for processing and review.