Whose water is it
anyway!?
By Keith T. Barber
keith@yesweekly.com.
COALITION OF CITIZENS, POLITICIANS AND ENVIRONMENTALISTS BATTLE
ALCOA TO RETURN THE YADKIN
RIVER TO THE PEOPLE
Alcoa shuttered its Badin Works aluminum smelting plant in 2002, laying off
more than 300 workers. (photos by Gerald W. Poplin)
The growing environmental and
economic development issue facing the citizens of Stanly
County and the 25 others that comprise
the Yadkin River Basin is echoed in the words of
former President Theodore Roosevelt.
“The conservation of our
natural resources and their proper use constitute the fundamental problem which
underlies almost every other problem of our national life,” Roosevelt told Congress in 1907.
Dean Naujoks, the Yadkin Riverkeeper,
cited the conservation movement of the early 20th century as a source of
inspiration for the coalition of citizens, politicians and environmentalists
who vigorously oppose Alcoa’s efforts to seize another 50 years of
control over water rights along the 38-mile stretch of the river. The span of
flowing water passes through Davie, Davidson,
Rowan, Montgomery and Stanly counties and
encompasses four hydroelectric dams at the High Rock, Tuckertown, Narrows and Falls reservoirs.
In a memo regarding Alcoa’s bid
to win another 50-year license from the Federal Energy Regulatory Commission,
or FERC, Naujoks referred to Teddy Roosevelt’s well known opposition to
corporate monopolies and his firm belief the nation’s natural resources
belong to the people. Naujoks cited Roosevelt’s
philosophy to highlight the disparity between the legendary president’s
philosophy and FERC’s policies. The federal agency “has never
denied a FERC permit and exercised ‘recapture’ provisions on behalf
of the public interest since permits were first issued in the 1920s under the
Federal Power Act,” Naujoks stated.
North
Carolina hopes to become the first state in
the union to snap that streak. Gov. Beverly Perdue officially came on board
with the Yadkin River Coalition undefined a group of local businessmen, citizens
and politicians who oppose Alcoa’s re-licensing efforts undefined last
September and her influence has proved invaluable to the cause.
The governor’s office filed
papers with the FERC “seeking return of the right to plan the use of the
Yadkin River flows and the Yadkin hydroelectric project for the benefit of the
people of North Carolina,” according to a press release.
Recapturing the water rights to the
Yadkin is essential to the health and well being of the citizens of the nearly
25 counties that comprise the Yadkin
River Basin, Perdue
stated.
“Given the Yadkin River’s
broad impact on the state, we believe strongly that the state is the most
appropriate body to plan use of this invaluable natural resource, to help
assure the region’s municipal water supply and quality and to facilitate
future growth and development,” Perdue stated.
BEGINNINGS
OF A COALITION
Gov. Perdue’s intervention has
helped thrust the battle over the Yadkin into the media spotlight. The movement
started quietly more than 10 years ago. In the late 1990s, local banker Roger
Dick began carefully studying the agreement struck between Alcoa and FERC.
Dick, the president of Uwharrie Capital Corporation, had joined with other area
businessmen to develop a long-range economic development plan for Stanly County.
Dick said he quickly realized the county was being denied the economic benefit
of its greatest natural resource undefined the Yadkin River.
The Badin Works aluminum smelting
plant did bring 1,000 jobs to the area after Alcoa applied for its water rights
license in 1958. But Alcoa, a multi-billion dollar corporation and the world’s
largest producer of aluminum, ceased operations at the plant in 2007. The plant
employed only 377 people when it shut down, said Alcoa spokesman Gene Ellis.
As Dick researched the histories of
energy cooperatives such as the Santee Cooper Electrical Authority and the
Tennessee Valley Authority, he discovered a connection between public ownership
of natural resources and a region’s overall economic vitality.
“Some of the poorest counties
in our state are the richest in terms of this commodity called water, so why
would you let it get away from you?” Dick asked.
That simple question led Dick and a
contingent from Stanly
County to take their case
to the NC General Assembly. One of the first legislators to take their side was
NC Sen. Fletcher L. Hartsell Jr., who represents Cabarrus and Iredell counties.
Hartsell came on board with the
Yadkin River Coalition two years ago after meeting with Dick, Jim Nance, a
former board member of the NC Department of Transportation, and Stanly County
Commissioner Lindsey Dunevant at his legislative offices in Raleigh.
Hartsell, a lawyer, admits he was a
bit skeptical at first. But after he studied the Federal Power Act, he became
fascinated with the issue of Alcoa attempting to maintain its monopoly over the
38-mile stretch of the Yadkin. Convinced of the appropriateness of the
coalition’s cause, Hartsell signed on and recruited fellow Republican
state senator, Stan Bingham.
“As far as I’m concerned,
Alcoa got the gold mine and we got the shaft,” Bingham said.
Bingham cited the town of Denton, population 1,450, as a perfect example of how
Alcoa is reaping all the benefits of the Yadkin without sharing that boon with
the North Carolinians who reside in the Yadkin River Basin.
“The little town of Denton is having to pay
[Alcoa] for the use of the water coming down the Yadkin for drinking,”
Bingham said. “The way that’s calculated is they charge because
it’s a loss of power generation…. This whole thing was done many,
many years ago, and a lot of people didn’t think about the people they
were dealing with at the time.”
Hartsell and Bingham made a push last
year to educate their colleagues in the NC Senate about what they characterized
as the economic injustice of Alcoa’s effort to re-license the water
rights for another 50 years. Their efforts resulted in a bill that would
transfer ownership of the Yadkin Hydroelectric Project to the Yadkin River
Trust in the event FERC denied Alcoa’s re-licensing application.
A
LEGISLATIVE BATTLE
Senate Bill 967, or the Yadkin River
Trust bill, was introduced by Hartsell last March and co-sponsored by Bingham,
along with state senators Tony Rand, Phil Berger, Dan Clodfelter, William
Purcell and Jerry Tillman. It cleared the Senate in May by a vote of 44 to 4.
“It was a totally bipartisan
group in the original filing,” Hartsell said.
The passage of SB 967 represented a
victory for the people of North
Carolina, Naujoks said. The bill received
overwhelming support in the NC Senate because it stipulated that hydroelectric
power funds “could provide millions annually for riparian buffer
protection, upgrades for aging sewage treatment plants and funding for
innovative stormwater pollution,” Naujoks said.
“It [would’ve] created
green jobs and generate[d] critical funding needed for all Yadkin River Basin municipalities
facing pending water quality mandates required for the High Rock Lake [Clean
Water Act] requirements,” Naujoks continued.
However, the House version of the
bill, HB 1455, failed to pass after Alcoa mounted an anti-property rights
campaign, Hartsell said.
When the bill reached the House in
July, it had to go through three committees as the legislature’s summer
session was winding to a close.
“It didn’t get started
moving until early July,” Hartsell said. “It had to move pretty
quickly. We got it through two committees, and it went to the floor just days
before the end of the session, but we didn’t have enough time to explain
a very simple, yet very complex circumstance to 120 people.”
The bill failed to pass by a 2-to-1
margin. Hartsell said the property rights rhetoric perpetuated by Alcoa’s
lobbyists got traction in the House, which determined the bill’s fate.
However, Alcoa’s property-rights argument is based on a false assumption,
he added.
“Alcoa and others keep talking
about it being a ‘taking’ [of property],” Hartsell said.
“It’s not a taking; it’s not even close to it. All
we’re asking Alcoa to do is to fulfill the obligations that were
identified in 1958 that they agreed to.”
“They acknowledged when the
license was up, they no longer had the right to use the property,”
Hartsell explained. “We’re saying there needs to be an equivalency
for the run of our river, and when I say ‘our,’ I mean
everybody’s. It’s not a private entity. The feds and the state have
had control of the run of the rivers since the beginning of the
republic.”
The language of the Federal Power Act
includes a stipulation that the controlling entity, in this case Alcoa, must
estimate the recapture value of the resource in the event it must surrender the
rights to that resource, Hartsell said.
“There is a statutory formula
for how you calculate recapture and Alcoa computed it to be $24.2 million in
2006,” Hartsell said.
Therefore, if the FERC denies
Alcoa’s application and returns the water rights to the people, the state
of North Carolina
will have to compensate Alcoa $24. 2 million for its four hydroelectric dams
and related infrastructure, Hartsell said.
Despite last summer’s
legislative defeat, the Yadkin River Coalition is now backing HB 1099, that passed
during the most recent legislative session.
The entrance to the
Narrow’s Dam on the Yadkin
River. The dam is one of
four on a 38-mile stretch of the river built by Alcoa. The Sediment Control
Plan sign posted by the NC Department of Environment and Natural Resources
includes the disclaimer “with performance reservations.”
“We put the Yadkin River Trust
Bill into that bill, and that bill’s in conference between the House and
the Senate and will be put into consideration once we reconvene in May,”
Hartsell said. “Frankly, it would be nice to put this into a one-page,
very clear expression of what we’re trying to accomplish.”
The bill clearly outlines the three
primary issues at stake undefined A) who controls the waters of the Yadkin for
the next 50 years; B) the environmental issue related to the condition or
quality of the water itself and the immediate environs; and C) the use of the
electricity generated by the run of the river.
“It’s far from being
dead, and I’m beginning to feel good about this,” Bingham said.
“Politics can be up and down but I think a lot of the facts are finally
going to come forward.”
From an economic fairness standpoint,
the General Assembly’s and FERC’s decision should be easy to make,
said Hartsell.
“[Alcoa] signed an agreement.
We’re just asking them to live up to their own word,” he said.
“The state of North Carolina
intervened 50 years ago on Alcoa’s behalf to assist them to get a 50-year
license and operate the plant at Badin, but conditions have changed
dramatically. If they’re going to use it, what is the return to the
people of the state on the state’s investment in the raw material, which
is the water? That water is owned by the people.”
Alcoa’s re-licensing
application represents “the mother of all incentives,” Hartsell
said.
“They want the state to concede
they should have $1 billion in benefit over the next 50 years and provide
nothing to the state,” he said. “I’m a Republican for
heaven’s sake and I’ve supported incentives but this is
ridiculous.”
“Why should we give it
away?” Hartsell continued. “From an economic development
perspective, energy is the major issue associated with job growth and
development regardless of the industry.”
Bingham characterized Alcoa’s
stewardship of the Yadkin in much harsher terms. He pointed out that Alcoa is
capitalizing on the hydroelectric energy generated by the Yadkin by selling
electricity “on the grid” rather than investing in the local
communities.
“We’re dealing with John
Dillinger and Al Capone,” Bingham said. “Alcoa reaps [millions] in
profits each year and North Carolina
gets zilch.”
A TOXIC LEGACY?
An environmental study commissioned
by Stanly County
and conducted by professor John Rodgers of Clemson
University last year established a
connection between contamination of polychlorinated biphenyls, or PCBs, in fish
and soil samples taken from Badin
Lake near Alcoa’s
Badin Works operation.
Rodgers’ findings led the
Yadkin River Coalition to appeal the water quality certification issued by the
NC Department of Environment and Natural Resources, or DENR. Administrative Law
Judge Joe Webster granted an injunction on May 26 prohibiting DENR from issuing
a 401 Water Quality Certification to Alcoa until the full appeal is heard.
The state issued a fish-consumption
advisory for Badin Lake between Stanly and Montgomery counties last February due to
elevated levels of PCBs found in largemouth bass and catfish. Alcoa attempted
to block the advisory by filing a legal appeal. The company claimed that the
state “changed its stated evaluation criteria after the study was
complete and held Badin Lake to a different standard than the other lakes and
rivers in North Carolina,” according to a posting on a company website.
Despite Alcoa’s claims, the
state implemented the fish-consumption advisory that currently remains in
effect.
PCBs can cause anemia; acne-like skin
conditions; damage to the liver, stomach or thyroid gland; changes in the
immune system or reproductive system; and behavioral problems, according to the
NC Department of Health and Human Services.
Bingham said Alcoa’s objection
to the posting of the fish-consumption advisory speaks volumes about their
concern for the people who swim and fish at Badin Lake.
“It just tells me how they do
business,” Bingham said. “They fought the fish-advisory signs; they
say we’re taking their property and we have no rights to the water.
We’re stuck with the bastards, at least for the moment, but I feel good
about the direction of the fight we’re taking on in the future.”
Naujoks said he’s concerned
about the high concentration of PCBs in the landfills and dumping sites near
Alcoa’s four hydroelectric dams. Naujoks said Alcoa has not been entirely
forthcoming about the number of waste dumping sites in and around their
facilities.
“Alcoa knows they can’t
hide these dumping sites,” Naujoks said. “They’re going
around pointing out the buried bodies that they want us to find. They’re
not showing us where all the buried bodies are found. As we start digging down
through the layers, we’re going to find much more.”
If FERC denies Alcoa’s
application, HB 1099 would implement enforcement of environmental cleanup
requirements against Alcoa where 47 hazardous waste sites have been identified
as well as PCB contamination in Badin
Lake swimming areas,
Naujoks said. The bill would also transfer control of the Yadkin
River lakes and dams from Alcoa to the
Yadkin River Trust, support efforts to return proceeds from the production of
hydro power electricity to the Yadkin
River Basin to protect
water quality, clean up environmental contamination and fund other projects in
the public interest within the basin, Naujoks said.
“The Trust will use a portion
of the proceeds from power generation to create a Yadkin River Basin Clean
Water Trust Fund to acquire land for water-quality improvements, innovative
storm-water strategies, state-of the-art wastewater improvements and aquatic
habitat improvements,” he added.
Additionally, Naujoks said he’s
interested in making sure there is an equally important campaign push to ensure
proper implementation of the legislation regarding environmental clean up and
to leverage as much funding as possible from hydro power profits, which could
generate more than $44 million a year, to ensure a dedicated source of funding
for comprehensive basinwide water quality improvements throughout the Yadkin/
Pee Dee River Basin.
The Yadkin River Coalition’s
challenge of NC DENR’s water quality certification is scheduled to go to
mediation next month. But Naujoks strongly believes the matter will have to go
before a judge.
“We’re going to court and
I’m very confident we’re going to win because the law is on our
side,” he said.
Naujoks said Alcoa’s legacy
will be a toxic one and the state should brace itself for a long legal battle
to force the aluminum-maker to clean up the toxic waste sites it will leave
behind.
“We’ll be fighting them
for decades to clean this up,” Naujoks said. “It’s just
wrong. It’s morally wrong. I’m just glad we have some pretty
powerful people on our side like the governor and Stanly County.”
A
PROMISING FUTURE
Bingham said once Perdue joined the
Yadkin River Coalition, it changed everything.
“It’s been wonderful;
it’s been extremely important,” he said. “We were facing a
multi-billion-dollar corporation, but when the governor listened to our pleas,
they began to take this extremely seriously. They realized they’re in for
a fight.”
Gene Ellis said the governor’s
filing with the FERC is not timely and that before the state could be granted
the license, the federal government would have to take it over.
“The governor doesn’t
really have the opportunity for the takeover that’s being
proposed,” he said. “There’s nothing in the Federal Power Act
or the commission’s regulations that allow for a state to take over a
project once the federal government has taken it over.”
Despite the federal
government’s regulations, Bingham said the coalition will never quit
until the Yadkin River
is returned to the people of North
Carolina.
“We’re not going to roll
over and play dead, I can tell you that much,” he said.
For his part, Naujoks said the Yadkin
Riverkeeper will continue to focus on the advocacy, media and legal campaign,
while generating support and participation in the coalition and educating the
public about the benefits of the legislation.
“Our legal case could take
years to resolve, but the campaign to support the legislation through the
coalition and FERC re-licensing could be decided within the next year,”
he said. “We will work on a targeted campaign to unify and strengthen
grassroots efforts of local governments, public interest organizations,
businesses and individuals to reclaim the waters of the Yadkin River
to benefit the public interest.”
Bingham said he can see a day in the
near future when the Yadkin is returned to the people and the economy of the 25
counties in the Yadkin
River Basin begin to
flourish.
“We can offer industry power at
a reduced rate and that plays a big part in manufacturing,” he said.
“That would be a tremendous incentive. For years, we’ve stood by
the sidelines and watched industries go elsewhere. We don’t have anything
to offer industry. Our greatest resource is just flowing down the river and the
dollars are being exported, which doesn’t do anything for us.”
The NC Department of
Health and Human Services issued a fish-consumption advisory last February on Badin Lake
after high levels of PCBs were found in fish tissue samples. Alcoa
unsuccessfully filed a legal challenge to the advisory last April. The advisory
remains in effect.
Alcoa, the
world’s largest producer of aluminum, is hoping to win its relicensing
effort to seize another 50 years of control over the water rights along a
38-mile stretch of the Yadkin River that encompasses High Rock, Tuckertown,
Narrows and Falls reservoirs.
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