State asked to review water quality certification for Pee Dee River

The Southern Environmental Law Center and the Natural Heritage Institute, representing the City of Rockingham and American Rivers, have asked a court to review the state's decision to issue a water quality certification to Progress Energy for the operation of the Tillery Dam in Montgomery County. The certification, issued by the state's Division of Water Quality (DWQ), will result in minimum water flows along a 19-mile stretch of the Pee Dee River that will not allow reliable boating and other recreational uses of the Yadkin-Pee Dee River nor will it provide adequate water levels for aquatic habitat, in violation of the state's water quality standards.

The water quality certification, called a “401 certification,” was approved by DWQ in February of this year as a part of the federal re-licensing of the Tillery Hydroelectic Dam operated by Progress Energy. Under the federal Clean Water Act and North Carolina water quality laws, DWQ must ensure that the Tillery Dam will restore and protect water quality and beneficial uses of the Pee Dee River before issuing the 401 certification.  But the certification in this case would not restore or protect water flow levels necessary for recreational boating, fishing or swimming, or the establishment of quality habitat for fish and shellfish-including several threatened or endangered species-as state law requires.

“This flawed and unlawful water quality certification would turn a public resource into a private benefit for Progress Energy.  North Carolinians are far too familiar with the consequences of inadequate water supplies, and the water flows this certification would allow are far below anything that would occur naturally even under drought conditions,” said John Suttles, attorney with the Southern Environmental Law Center.

The Division of Water Quality has previously identified water quality problems in the Pee Dee River due to inadequate flows from the Tillery Dam. In addition, the U.S. Fish and Wildlife Service noted that if the river flows were restored to higher levels, the river would provide high quality habitat for fish, mussels and other aquatic and wildlife, including many endangered and threatened species. 

“This would be a terrible precedent for protecting the water flowing in North Carolina's rivers.  DWQ could dry up any river in the state if the permit issued by DWQ is allowed to stand,” said Gerrit Jöbsis, southeast regional director of American Rivers. “This is the one chance we have to get this right. The conditions set forth in this permit could result in the public – fisherman, boaters, children swimming or playing – would be shut off from the Pee Dee River for the next 50 years if Progress Energy has its way.”

In order for Progress Energy to apply for re-licensing of its dam with the Federal Energy Regulatory Commission (FERC), DWQ must first certify that the project will comply with all applicable water quality standards, including any existing uses or uses that could be achieved if the river were allowed to run under more natural conditions. To meet those standards, the certification must assure that the operation of the dam will do more than maintain the current degraded water quality-it must “restore and maintain the integrity of the nation's waters.” This includes providing habitat for the protection and propagation of fish and wildlife and for recreation in and on the water by the public.  However, the certification issued by DWQ allows water flows that are more than two times lower than they should be to meet water quality standards.