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Wednesday, 18 March 2009 20:18

Duke Energy, Jackson argue cases in court

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Duke Energy and Jackson County appeared in court Monday (March 16) to argue over permits related to the removal of the Dillsboro dam.

An attorney for Duke Energy said the court should order the county to issue the permits to Duke.

Superior Court Judge Laura J. Bridgers said she will make her decision after she has had time to review all the documents.

The permits are necessary to dredge sediment behind the dam. Before Duke can tear down the dam, it has to dredge the sediment.

Duke asserted that the county, which wants to save the dam, is simply denying the permits to delay the demolition.

Duke Energy sued Jackson County a few months ago, charging that the county refused to issue a Floodplain Development Permit and a Land Development Compliance Permit to dredge 70,000 cubic yards of sediment from behind the Dillsboro dam.

Duke says it has met every requirement for the permits, but the county still won’t issue them.

“You either meet the requirements or you don’t,” Duke attorney Kiran Mehta of Charlotte said. “You’re not in a position to refuse permits when you meet all the qualifications.”

Moreover, Duke said it has received the go-ahead from the Federal Energy Regulatory Commission to dredge the river and demolish the dam, and therefore doesn’t even need county permits.

Duke asked the court to declare that the Federal Power Act supersedes or “pre-empts” the county permits.

The county said it is not going to issue the permits until all its legal appeals regarding the Dillsboro dam are resolved. Depending on the outcome of the appeals, there could be a modification to how the dam is removed or it may not be removed at all, argued Jackson County’s attorney in the matter, Paul Nolan from the Washington, D.C., area.

Nolan said the permits can’t be granted before the litigation is resolved because the matters are “intrinsically intertwined.”

The county is appealing the FERC order that the dam be demolished to the U.S. Court of Appeals in Washington and is also appealing the state’s issuance of a water quality permit.

Duke wants to tear down the Dillsboro dam as a form of mitigation to keep operating its myriad other hydroelectric dams in the region. The Dillsboro dam is antiquated and no longer produces enough power, Duke says. Tearing it down will improve the environment by opening up the river, which will also benefit whitewater enthusiasts, Duke says.

Nolan told the court that the county wants the dam to stay because it is scenic, historic and a tourist attraction for Dillsboro. It could also be a source of green power if retrofitted.

FERC ruled that the sediment must be removed before the dam is demolished. Otherwise, the sediment could rush downstream and cause environmental problems.

Duke’s attorney, Mehta, noted that the FERC order states that the dam must be removed by July 19, 2010. By failing to issue the permits, Jackson County could prevent Duke from meeting the deadline, Mehta said.

For Duke to meet the deadline, dredging needs to begin by July 1 of this year, Mehta added.

Duke applied for the Land Development Compliance Permit in August 2008 and the Floodplain Development Permit in November 2008 and still hasn’t received either one. Such permits usually only take about a week to issue, Mehta said.

The county was giving Duke the “run around” over the permits, Mehta said.

For instance, after reviewing Duke’s Land Development Compliance permit application, the county planning office determined that a floodplain permit would also be needed but didn’t tell Duke, Mehta said.

Duke had to specifically inquire as to whether it would need another permit. It wasn’t until about three months later that the county informed Duke that it would also need the floodplain permit, which Duke then applied for, Mehta said.

But Planning Director Linda Cable notified Duke that the county would not issue the permits until the appeal regarding the water quality permit was resolved.

FERC does not require Duke to get local permits, but suggests that it should try to abide by local rules to be “good citizens.” But if the local laws cause interference the utility doesn’t have to follow them, FERC says.

Duke claims it tried to be a good citizen and get the local permits, but the county refused to issue them. Mehta said Jackson County refused to communicate with Duke and built walls around the permit process rather than facilitate it.

Mehta told the judge that the county has argued that the Superior Court does not have jurisdiction in the matter because of the other litigation taking place over the dam. But Mehta balked at that, saying, “You have subject matter jurisdiction on anything that walks through the door.”

It doesn’t make sense for the county to not issue the permits, because the county also wants the sediment dredged, Mehta said.

But Nolan, representing the county, said if Duke gets the permits for dredging it is a “slippery slope” toward dam demolition. For instance, if the dredging takes place, a court may be more inclined to go ahead and allow for the dam to be removed.

The holdup with the permits has caused six to nine months of delay, said Mehta, and to ensure there is no more delay, he wants the court to order that the county can’t require any future permits for the dredging.

By denying the permits, the county is attempting to “derail” the FERC order that the river be dredged and the dam removed, Duke asserts.

It’s “obvious that Duke is right and the county is wrong,” Mehta said, adding that it is in the judge’s power to tell the county “enough is enough.”

There was only one member of the public in the courtroom, Sam Fowlkes, who favors dam removal and said the county is spending too much in legal fees on the matter.

Fowlkes said he can’t understand the county’s wanting to save the dam.

‘“It’s an ugly hunk of concrete,” said Fowlkes, who said he is on the board of directors for the American Canoe Association.

Removing the dam would help his sport by opening up the river, he added.

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