April 1, 2011 Lynn Sisk Chief, Water Quality Section Water Division Alabama Department of Environmental Management 1400 Coliseum Boulevard Montgomery, AL 36110-1463 Submitted via Electronic Mail RE: Comments on Application for Water Quality Certification for the Martin Hydroelectric Project (FERC #P-349) Mr. Sisk: On behalf of American Rivers and our members in the Tallapoosa River Watershed, the Alabama Rivers Alliance hereby submits comments on the application for water quality certification as part of Federal Energy Regulatory Commission (FERC) license application for Alabama Power Company‟s (APCO) Martin (Tallapoosa River) hydroelectric project and urge ADEM to deny the application because the department cannot determine that there is a reasonable assurance that the discharge resulting from the project will not violate applicable water quality standards under Section 303 of the Clean Water Act and Title 22§22-22-9(g), Code of Alabama,1975. Our organizations are non-profit organizations dedicated to the protection and restoration of the rivers of Alabama. We have been and will remain active participants in the re- licensing of the Martin project. We very much appreciate the extension of the deadline for comments. This is a very complex and important issue and the Department is to be commended for encouraging maximum public participation. DESCRIPTION OF IMPACTED WATERS The Martin Project is an existing hydropower facility located on the Tallapoosa River in Coosa, Elmore and Tallapoosa Counties in Alabama. Along with Yates and Thurlow, the two subsequent “run of river” dams, Martin Dam impounds approximately 41 miles of river. The entire Tallapoosa River is designated for Fish and Wildlife and the river is known for its exceptional water quality and recreational opportunities. The reach immediately below Thurlow dam is widely used for white water boating and other whole body contact sports and ADEM has recently nominated Lake Martin as Alabama‟s first ever Treasured Alabama Lake. The Martin project include four hydroelectric generation units with a total installed capacity of 182.5 MW. Martin‟s units 1-3 were recently refurbished for increased capacity. SECTION 401 CERTIFICATIONS Section 401 of the Clean Water Act (CWA) provides Alabama Rivers Alliance 2027 Second Avenue North, Suite A * Birmingham, AL 35203 (205) 322-6395 * Facsimile (205) 322-6397 Re: Comments on Application for Water Quality Certification under Section 401 of the Clean Water Act Alabama Rivers Alliance April 1, 2011 (1) Any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates… that any such discharge will comply with the applicable provisions of sections 301, 302, 303, 306, and 307 of this title In issuing a certification, the State must ensure that the activity will comply with the requirements of the CWA and not violate Alabama‟s Water Quality Standards. The Purpose of the CWA is to “restore and maintain the chemical, physical, and biological integrity of the Nation‟s Waters,” 33 U.S.C§ 1251(a). Thus in issuing a certification, ADEM must ensure that the activity with contribute to the restoration of the chemical, physical, and biological integrity of the State‟s waters, or at the very least not interfere with such restoration. The department may deny certification if a project does not assure compliance with the water quality standards and other applicable requirements of the CWA. “No license or permit shall be granted if certification has been denied by the State…” CWA §401(a)(1). In accordance with CWA and State law, ADEM can only issue a certification if there is a reasonable assurance that the discharge resulting from the proposed activity as outlined in the licensees 2010 application will not violate applicable water quality standards under the CWA and Title 22, §22- 22-9(g), Code of Alabama, 1975. Accordingly, the department must make findings that the projects, including the measures specified in its certifications, will assure compliance with all of Alabama‟s water quality standards applicable to the affected reaches of the Tallapoosa River as well as the entire Mobile Bay watershed. In the event of a waiver, ADEM must demonstrate that such a grant of the water quality certification is in the public interest. ADEM SHOULD REQUEST WITHDRAWAL OF THE APPLICATION OR DENY THE APPLICATION BECAUSE A SUFFICIENT DETERMINATION CANNOT BE MADE AT THIS TIME The certification of a project such as this under Section 401 of the Clean Water Act is an extremely large and important decision and the consequences of any action on the part of the State will have significant, far reaching impact on the water quality of the Tallapoosa, Alabama, and Mobile Rivers as well as Mobile Bay and the Alabama Gulf Coast. The 401 certification is the culmination of a process that routinely last over 10 years.1 Therefore it is incumbent on the Department to proceed cautiously to ensure that it has the best data for making such a consequential decision. A decision of such importance must not be taken without complete information. The Alabama Administrative Procedures Act expressly prohibits agency actions that are “[u]nreasonable, arbitrary, or capricious…” 41-22-20(k), Code of Alabama, (1975). For this reason we renew our request that the Department not make a determination until the utility has 1 For Example, Alabama Power began the relicensing process for the Coosa River with a letter to FERC dated September 22, 2000. Almost 11 years later, the process is ongoing. Currently, FERC is waiting on the biological opinion from the U.S. Fish and Wildlife Service and the applicant amended its biological opinion on January 24, 2011, almost 6 years after ADEM issued its water quality certification. The License for the Black Warrior River was issued on March 31, 2010; 5 years after ADEM issued its water quality certification 2 Re: Comments on Application for Water Quality Certification under Section 401 of the Clean Water Act Alabama Rivers Alliance April 1, 2011 submitted its final application and all information regarding potential impacts to water quality have been submitted for review.2 With respect, we strongly disagree with the Department‟s assertion that the applicant has provided enough information in its application and on its website to make a determination unless such determination results in a denial of the application.3 To date the utility has not adequately undertaken to study the effects of the project downstream of Thurlow Dam; the applicant has not adequately studied the impacts of project operation on fish populations downstream of the project; the applicant has not provided sufficient information regarding the impact to water quality from proposed rule curve changes; and neither the applicant nor FERC have begun discussions regarding proposed measures and plans to protect, mitigate, or enhance environmental resources (PM&E measures). Request for these studies have been repeatedly brought to the applicant as part of the Integrated Licensing Process (Attachments 1-3). Except for modifications proscribed by FERC which extended the geographic scope of the studies below Thurlow Dam to river mile 12.9 on the Tallapoosa River (Attachment 4) the applicant has refused to undertake the studies necessary for a sound assessment of the impacts to water quality from project operation. Any decision based on the information provided by the applicant to date would be premature. Additionally, the environment assessment process required under the National Environmental Policy Act (NEPA) has not begun. Nor has the U.S. Fish and Wildlife Service issued a biological opinion on project impacts. The information required for these assessments is essential to determining the impact that the proposed action will have on the State‟s water quality standards. ADEM does not generally conduct equivalent environmental assessments on its own. ADEM should defer its certification until FERC‟s required NEPA assessment is completed and the FWS has issued its biological opinion in order to make use of their data and findings. In light of recent relicensings on the Coosa and Black Warrior Rivers, deferring the certification until these studies are complete will in no way delay the final license for the applicant. ADEM must therefore either request that the applicant withdraw is application to resubmit it at a later date once the applicant has submitted its application to FERC and all required environmental studies have been completed or deny the application outright and request that the applicant resubmit once it has filed its final application with FERC and all environmental have been completed. 4 We understand that, under the CWA §401(a)(1), the department must make a determination within one year of the date of application and that the utility prematurely 3 Time and date discrepancies plague the data APC provided. For example, APC gave ADEM 2 additional data points after 10/25/2002 at 18:00, but the next data (from 19:30 on 10/25/2002 to 7:30 on 10/26/2002) are missing. The next data point occurs on 10/26/02 at 8:00 (DO recorded at 4.5 mg/l), followed by another break until 14:30 (DO recorded at 4.59 mg/l). That single datum point is followed by another break in recorded DO data until 10/27/02 at 8:30 and 9:00 (DO recorded 4.65 mg/l and 4.60mg/l, respectively). Another, albeit smaller, data gap occurs with the next recorded DO is 4.52 mg/l at 14:00 on 10/27/02. In aggregate, the time of day gaps in data from 2002 – 2005 can be best seen in Figure 2.