FEDERAL
ENERGY REGULATORY COMMISSION
Alcoa Power Generating, Inc. (APGI) Project
No. 2169-020
Re: NOTICE OF SETTLEMENT
AGREEMENT AND SOLICITING
COMMENTS
COMMENTS
ON THE RELICENSING SETTLEMENT AGREEMENT FOR
THE
TAPOCO HYDROELECTRIC PROJECT
FERC PROJECT NO. 2169-020
ON BEHALF OF THE AMERICAN WHITEWATER AFFILIATION, CAROLINA
CANOE CLUB, EAST TENNESSEE WHITEWATER CLUB, ENDLESS RIVERS ADVENTURES,
NANTAHALA GORGE ASSOCIATION, NANTAHALA OUTDOOR CENTER, WESTERN CAROLINA
PADDLERS, AND WILDWATER LIMITED.
The American
Whitewater Affiliation, Carolina Canoe Club, East Tennessee Whitewater Club,
Endless River Adventures, Nantahala Gorge Association,
The Parties:
American Whitewater Affiliation, Carolina Canoe Club, East Tennessee Whitewater Club, Endless River Adventures, Nantahala Gorge Association, Nantahala Outdoor Center, Western Carolina Paddlers, and Wildwater Limited (hereinafter referred to as “Interveners”:
The American
Whitewater Affiliation (hereinafter known as American Whitewater or AW) is a
national non-profit 501(c)3 river conservation and recreation organization
founded in 1954. We have over 6,000
members and 160 canoe club affiliates, representing approximately 80,000
whitewater paddlers across the Nation. Carolina Canoe Club (CCC), East Tennessee
Whitewater Club and Western Carolina Paddlers (WCP) are regional conservation oriented
paddling organizations have a strong interest in the future of the Cheoah and
Little Tennessee Rivers and, therefore, the relicensing
of the Tapoco Project. A significant
portion of the membership of the aforementioned organizations lives and
recreates in
Endless River
Adventures (ERA), Nantahala Outdoor Center (NOC), and Wildwater
Limited (WWL) are outfitters that provide guided trips for the public on rivers
near the project area. Each year these
companies facilitate recreational experiences for tens of thousands of US
Citizens, and employ more people than any other business in
The Interveners
have been dedicated participants in the Alternative Licensing Process since its
inception. We have actively participated
in virtually all of the stakeholder meetings, played a large organizing role in
the Cheaoh River Recreation Study, and offered
significant comments on the Tapoco Preliminary Draft Environmental Assessment,
the Resource Agency Group (RAG) Technical Memorandum, and the economic studies
of the project. In addition, many of our
members and customers have a direct interest in the ecological integrity of,
and recreational experiences provided by the Cheoah and Little Tennessee
rivers. Therefore, American Whitewater,
Carolina Canoe Club, East Tennessee Whitewater Club, Endless River Adventures,
Nantahala Gorge Association,
Collectively, Interveners represent most, if not all of the river recreation interests involved in the Tapoco Relicensing. None of the Interveners have signed, or intend to sign the Agreement in Principle (AIP) or the Settlement Agreement associated with the Tapoco Relicensing because these agreements fail to provide appropriate mitigation for the Tapoco Project’s significant impacts on river recreation on the Cheoah and Little Tennessee rivers, and fail to meet the public demand for these rivers.
COMMENTS
1) Introduction:
These
comments will closely follow our comments and requests made in our recent
comments on the FERC EA. The Settlement
Agreement (SA) is not comprehensive: it provides virtually no mitigation of the
Tapoco Project’s drastic impacts on whitewater recreation on the
2) Objections to Specific Components of the Settlement
Agreement
a) Settlement
agreement is not comprehensive:
The
SA offers conflicting statements about the comprehensive nature of the SA. The stated purpose of the SA is for it to act
as a comprehensive resolution of all relicensing
issues[1]. However the scope of the SA is clearly
defined as only resolving the issues relating to the parties that actually
signed the SA[2]. We would like to state for the record that
the SA is not comprehensive by any definition.
Many stakeholders, including the Interveners, chose not to sign the
settlement, and specific interests and issues are not covered or adequately
mitigated in the SA. Specifically, the
Intervener’s interests in restoring adequate and appropriate whitewater
recreation opportunities to the
·
APGI is providing $0.00 for whitewater recreation
access areas while the
· The high flow releases proposed in the SA are all below the optimal flow for paddling,[4] over half are below the minimum acceptable flow, [5] and most are during spring months when non-commercial paddling is viable but commercial use of the river is highly questionable.
· If the public wishes to have even a single day of recreational releases at an optimal flow they must pay APGI for the water (charges estimated at $15,000-$25,000 per day), a $3,000 administration fee, and an undetermined fee for biological monitoring.
·
The recreational value or use of the high flow
releases is never mentioned in the SA, because these releases were not proposed,
designed, or accepted by APGI as recreational releases. They are biological releases mandated though
negotiations by the Resource Agency Group (RAG). In fact the Licensee stated on numerous
occasions that they would not provide a single release for recreational
boating, only those required to meet the ecological mandate of the RAG. As the Licensee stated in their recent
comments on FERC’s EA, “It is important to note that
the high flow events were designed by the RSA Parties primarily to protect, mitigate,
and enhance aquatic resources which could also provide a whitewater
boating experience on the
·
The whitewater paddling community is not invited
to be involved in any post licensing discussions regarding the
· The high-flow regime can be altered post-licensing to accommodate and optimize biological needs but cannot be altered in any way to improve the recreational benefits of the releases.
· The conservation easements proposed for project and non-project land may impinge upon the public’s recreational use of Yellow Creek, much of the reservoir shorelines, and other creeks by a prohibition of “other modes of transportation” that could include canoes and kayaks.[6]
In summary, APGI provides no mitigation of their
significant impacts on the best whitewater river in the Southeast through the
SA, and the recreational benefits associated with the biologically motivated
high flow events are woefully limited in quality and quantity, and subject to
change in the future with no consideration of the recreational values
associated with these releases.
b)
The
license term should be 30 years if the FERC decides not to include the
recreational interests of the Interveners in the new license for the Tapoco
Project.
While the Interveners see no reason why the FERC would not
address our concerns and meet our interests in the new license for the Tapoco
Project, we request that if FERC does decide to continue to allow APGI to
drastically impact whitewater recreation on the Cheoah River without
mitigation, then the FERC limit the term of the license to 30 years. The recreational and economic impacts of
adopting the SA without adding a recreational component are so great that they
more than justify limiting the term of the license to 30 years. The paddling community in the Southeast and
the Nation[7],
as well as the business community in the region[8]
have waited a long time to see the recreational values of the
c) The FERC has the discretion to add mitigation above
and beyond the SA in order to meet outstanding interests, and APGI cannot
withdraw from the SA without permission from FERC and the Signatories of the
SA.
APGI
has threatened the entire stakeholder group for years that if APGI’s undefined financial limits were exceeded by the relicensing process that they would walk away from the
table and receive a license directly from the FERC. In their recent comments on the FERC EA, they
boldly threaten the FERC by stating, “… the Commission needs to be aware that
acceptance of such Staff recommendations could well torpedo the entire
settlement.” Furthermore they state:
“APGI will not accept additional economic burdens without exercising its right
to withdraw from the settlement and have all the relicensing
issues determined on the basis of the record.”[10] The FERC should not be moved by APGI’s empty threats.
APGI is making $24,611,413.00 in profit per year[11]
on the Tapoco Project and is committing a pittance to the protection,
mitigation, and enhancement measures associated with the relicensing. APGI must know that should FERC determine all the relicensing issues on the basis of the record it would cost
APGI significantly more than the costs associated with the SA, even with the
minor requested whitewater recreation enhancements added to the license.
More
importantly than APGI’s threat being hollow, it is in
conflict with the terms of the SA. APGI cannot simply walk away from the SA to FERC for a
new license based on the record, even if they wanted to. APGI has signed a binding settlement that requires
them to consult with the other SA Parties should FERC modify the SA in a new
license and attempt to reach consensus on adopting the license terms as a
revised settlement agreement[12]. If these efforts fail, then APGI can file a
Request for Rehearing, but cannot simply withdraw from the SA. In fact, APGI would not be able to withdraw
from the SA until the “New License is issued with a FERC-Imposed Modification
and has become Final and Non-Appealable, provided the
withdrawing Party has exhausted its administrative and judicial remedies in
contesting such FERC-Imposed Modification.”[13] More importantly, if the FERC denies a
request for rehearing from APGI, then it requires consensus of the entire group
of settlement signatories for APGI to withdraw from the Settlement Agreement. In short, it is up to the FERC whether APGI can withdraw from
the SA,
since there is almost no chance the signatories to the SA would reach a
consensus agreement that allows APGI to withdraw after a denied request for
rehearing.
In
the unlikely event that APGI would choose to withdraw from the SA, and the FERC
grants APGI a request for rehearing, and the signatories of the settlement
agreement inexplicably agree to let APGI withdraw, then APGI would be faced
with a rather daunting alternative. The
only portion of their SA that is not recommended as a License Article is the
land easement issue. Therefore APGI
would be essentially choosing between mitigating significant project impacts
on-site through flow restoration as part of a new license or offsite mitigation
through land protection as part of the SA.
If the FERC issues a modified license and APGI considers withdrawing
from the SA - thereby removing the easements from the mitigation package - than
APGI would be subject to new 401 water quality certifications and FERC/RAG
mandates relating to flows that would likely be (and should be) far more costly
to APGI than the agreed upon easements.
Suitable mitigation could include operating Santeetlah
in run-of-river mode at the dam to maximize the ecological restoration
of the last vestige of a flowing reach within the project, restoring a
significant amount of flow to the Calderwood Bypass,
or reconsideration of decommissioning of one or more dams. The lands are that important to the SA
parties and to the Interveners. The
mitigation required of APGI by the FERC and the Resource Agency Group - should
APGI consider withdrawing from the settlement - should be sufficient to
convince APGI it is in their best interest to remain a signatory of the SA and
accept the minor inconvenience of restoring whitewater opportunities to the
Cheoah River.
We maintain though, that APGI cannot withdraw from
the settlement as long as FERC denies APGI’s request
for rehearing, and at least a single SA signatory refuses to consent to their
withdrawal.
d) The FERC should not accept the terms of the Settlement
Agreement that allow APGI to charge the public for recreational releases.
The Interveners object the portions of the SA[14]
that would require the public to give the
i)
There is no precedent for requiring the public to pay a Licensee for
releases.
Through conversations with the FERC[15],
Hydropower Reform Coalition steering committee members, and other relicensing experts, the Interveners have determined that
the public has never been required to pay a Licensee for recreational
releases. Frankly, this is because it is
absurd for the public to give a river to a corporation through relicensing so that they can buy it back. Such a decision would undercut the very
foundation of relicensing.
ii)
The Public Trust Doctrine prohibits the FERC from allowing APGI to
charge the public for recreational releases.
One of the
keystones to
iii) Eastern Water Law
prohibits the FERC from allowing APGI to charge the public for recreational
releases.
The SA itself states that the SA does not grant or
affirm any property right, license or privilege in any waters or any right of
use in any waters, nor does it authorize any person to interfere with the
riparian rights, littoral rights or water use rights of any other person[16]. Nor does the Federal Power Act claim to in
any way impact the state of
iv) The Federal Power Act
(FPA) and the Electric Consumers Protection Act (ECPA) prohibit the FERC from
allowing APGI to charge the public for recreational releases.
Nowhere in the FPA or in ECPA is a Licensee granted
the authority to charge the public for recreational releases. In fact, Section 4(e) of the FPA[18]
requires the FERC to give equal consideration to recreation and other
beneficial uses of the river. If equal
consideration is granted, then a power generation corporation will not be
granted the right to charge members of the public that desire the
v)
Economic factors will not support any additional fee-based releases.
APGI economic studies done during relicensing
predict that 30 days of releases would yield $4,663,200 in new economic output
to
3) Recommended Changes to the Proposed License Terms in
the Settlement Agreement for Inclusion in the New License for the Tapoco
Project.
The Intervenors respectfully
propose the following changes to the terms of the SA, with the goal of
eliminating illegal and unethical terms that would fail judicial scrutiny, and
of adding complimentary terms that will make the new license for the Tapoco
Project truly comprehensive through providing fair and reasonable opportunities
for whitewater recreation in the
a)
Section
1.2.2.10:
Change to “Schedule single day high flow events from July through November with
a minimum of 10 days between events. The
Licensee will provide 12 months prior notice to the USFWS, USFS, NCWRC, NCDENR,
EBCI,
b)
Table OR 2.3 “High Flow Events –
5-Year Repeating Schedule” should be changed to reflect Table 1 in these
comments found below.[22]
|
Table 1: Intervener Recommended Changes to the
Five-Year High Flow Releases proposed in the Settlements Agreement Table OR
2.3(Only the magnitude columns and the bottom two rows differ from Table OR
2.3 in the Settlement Agreement). |
|||||||||||||
|
High Flows |
Year 1 2005 |
Year 2 2006 |
Year 3 2007 |
Year 4 2008 |
Year 5 2009 |
Magnitude (cfs) |
|||||||
|
|
Events |
Days |
Events |
Days |
Events |
Days |
Events |
Days |
Events |
Days |
Day 1 |
Day 2 |
Day 3 |
|
January |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
February |
1 |
2 |
1 |
2 |
1 |
2 |
1 |
2 |
1 |
2 |
1130 |
||