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Why does Duke want to tear down the dam?
Dam removal is tied to the larger issue of mitigation for Duke’s hydropower operations in the region. Duke operates 10 other dams on five rivers in the region. The permits for those dams are up, and to get new ones, Duke must offer environmental and recreational mitigation, compensating the public for the use of the rivers to produce profitable hydropower.
Tearing down the Dillsboro Dam is the cornerstone of Duke’s mitigation plan. Paddlers and environmental agencies are excited to see the dam go as it will restore a stretch of free flowing river. Others think Duke is unloading an aging dam it didn’t want anyway under the guise of mitigation.
Is there hope for a compromise yet?
Yes. Duke could at any time make Jackson County a counter-offer to back off condemnation proceedings, or vice-versa.
What exactly does Jackson plan to take from Duke?
Jackson County voted to initiate condemnation proceedings against the Dillsboro dam, the powerhouse adjacent to the dam and shoreline property Duke owns around the dam on both sides of the river.
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Can Jackson County legally take the dam from Duke?
Jackson County wants the dam and surrounding property to make a park. Counties are granted the power of eminent domain to seize property for several public uses. One of those is recreation, which the county cited as its reason for the condemnation. Recreation was used to as grounds for eminent domain in the creation of the Great Smoky Mountains National Park.
What would Jackson do with the dam?
Jackson County leaders previously said they wanted to operate the dam themselves as a source of green power rather than see it torn down by Duke. Making electricity isn’t just cause for a county to flex eminent domain power, however. But once Jackson has control of the dam under the guise of recreation, it could theoretically try to put the dam in operation for hydropower.
What happens now?
Jackson County’s next step is to have a survey and appraisal of the property it plans to condemn. Following the vote Monday night, the county must wait at least 30 days before it can formally file condemnation proceedings through the courts. As for Duke, representatives at the commissioners meeting said their next step is to wait and see if Jackson follows through with formal proceedings.
How much will Jackson have to pay for the property?
Jackson will hire an appraiser to determine fair market value for the property. The dollar value will be filed as part of the formal condemnation proceedings in court. When Duke formally initiates the proceedings, it has to put up the money right then. Whatever dollar value Jackson County puts on the dam and surrounding property must be deposited in full in an escrow account held by the court.
If Duke disagrees with Jackson’s offer, it can sue for more money. The ultimate decision would rest with the courts, possibly a jury trial.
Can Duke challenge the value Jackson puts on the property?
Yes. The most common protest in a condemnation proceeding is over the monetary value being offered for the property. Duke can go to court claiming the market value of its property is more than what Jackson says it is. Duke’s legal argument would center around what’s a fair price rather than the ideological premise of condemnation.
Can Duke challenge Jackson’s use of eminent domain?
Yes. Duke could challenge whether Jackson County has just cause for the condemnation and argue that the dam is not an integral to the recreation plans, although this type of legal challenge to eminent domain is rarely attempted.
The state spells out grounds for eminent domain, one of which is recreation. Whether the particular recreation project is a good idea is not legal grounds for contesting it.
“To say, ‘Well we don’t think it is a very good project’ isn’t going to do very much,” said Charles Szypszak, an expert in public law with the Institute of Government at UNC-Chapel Hill.
Can Duke hurry up and tear down the dam?
Duke still owns the dam for the moment. However, hurrying up and tearing down the dam while Jackson gets its ducks in a row for condemnation is logistically impossible.
Before Duke tears down the dam, it is mandated to dredge 70,000 cubic yards of back-logged sediment from behind the dam to prevent it from washing downstream when the dam comes out. The dredging would take approximately five months, according to Fred Alexander, Duke spokesperson.
The target date for dam removal to begin was January 2010. That would get Duke outside the window for spawning season of the endangered Appalachian elktoe mussel, which lives downstream of the dam.
If tearing down the Dillsboro dam was Duke’s version of environmental mitigation, what will serve as mitigation if the dam stays?
This is unclear and a matter of great debate. Duke says if the dam stays, it will be required to forgo some of its power generation at the much larger dam upstream at Lake Glenville.
To make hydropower at Lake Glenville, Duke diverts water out of the Tuckasegee River and sends it for miles over land through giant pipes to a power plant before finally being returned to the river. The more water Duke diverts from the river, the more power it can make. The same goes for hydro operations at its other bigger dams, like Nantahala Lake and Bear Lake.
In the meantime, however, several miles of the river downstream of those dams are left with little water, harming the aquatic ecosystem.
Removing the Dillsboro dam was supposed to mitigate for robbing other stretches of the river of water. If the dam doesn’t come out, environmental agencies could insist on Duke restoring more water to those stretches currently being by-passed.
The less water Duke is allowed to divert, the less power it can make at its large Lake Glenville power plant. Because of this, Fred Alexander, a spokesperson for Duke, argues that keeping the Dillsboro dam would actually mean a net loss in hydropower. The amount of power produced off the small Dillsboro dam could not make up for the power production lost at Lake Glenville, Alexander said.
Alexander said it is an either-or proposition. If the Dillsboro dam doesn’t come out, Duke will have to restore more water to the dewatered sections, and thereby lose some of its hydropower capacity.
The mitigation package on file with the Federal Energy Regulatory Commission says only that failured to tear down the dam “may nessicitate” a re-examination of how much water is being diverted from the river below Duke’s larger dams.
John Boaze, an environmental consultant with Fish and Wildlife Associates, said it is not necessarily and either-or proposition, but that other mitigation may be an option contingent on approval by state and federal environmental agencies.
“What becomes of that your guess is as good as mine,” said Boaze.
Jackson County has long held that tearing down the dam was a poor excuse for mitigation that benefited a small segment of the population, namely paddlers. Jackson would rather see greenways along the river, or an environmental trust fund based on a percentage of Duke’s profits off the dams.