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Going, going, gone

When Duke first broached the idea of tearing down the Dillsboro dam eight years ago, Mark Singleton thought he would see this day come much sooner than it did.

A champion of dam removal both for the ecological and recreation benefits, Singleton had a front row seat last week on the banks of the Tuckasegee when a hoe ram struck its first blow, taking a tiny but symbolic chip from the top of the dam.

“It’s a historic day for the river. It’s also nationally significant,” said Singleton, a Jackson County resident and paddler. “Dams like this don’t come down very often.”

Singleton hardly slept the night before, wondering what the river would look like in its natural state. Before the dam came down, you could barely make out giant rock formations lurking beneath the surface. The dam was also rumored to sit on top of a rock ledge. That would all be exposed as the water dropped, revealing what Singleton hoped would be fodder for a paddlers playground.

“What kind of cool features are waiting under there?” Singleton said. “It is like Christmas. You are unwrapping a present.”

Singleton also wondered whether the large rock formations would create shallow tide pools, something his own children like to explore.

“All of that is underneath here. We just haven’t seen it in 100 years,” Singleton said.

Singleton said the former dam site will be a construction zone for a few months yet, but by summer, he hopes to be paddling down the new stretch of river. A big spike among paddlers could be witnessed the first year, but Dillsboro will likely find itself as a new hub for recreational paddlers even after the novelty wears off, said Singleton, the executive director of American Whitewater, a national paddling advocacy group.

“It is a great thing. I am glad to see the river is free-flowing,” said James Jackson, a local paddler and business owner. “I think it will be a great addition to the county.”

Meanwhile, environmental benefits of dam demolition were also cheered by biologists who had lobbied for dam removal.

For starters, nearly a mile of slow moving backwater behind the dam will be restored to a natural mountain river. Also, with the dam gone, fish will once again have free range to migrate up and downstream, expanding their reach, according to Mark Cantrell, biologist with the U.S. Fish and Wildlife Service.

Aquatic species have been “bumping their head on this dam for years,” Cantrell said.

One such species is the endangered Appalachian elktoe mussel. The eggs of elktoe mussles hitchhike on fish, which unwittingly play host to the developing larvae in their gills. The baby mussels eventually jump ship and wherever they land becomes their new home. Dams that block fish consequently block the distribution of the elktoe mussels.

Dam removal will allow previously isolated elktoe populations to unite and in turn build back up the gene pool, Cantrell said.

Dam removal will also help the sicklefin redhorse, an extremely rare fish that Cantrell would like to see placed on the list of endangered species. It is found on only five rivers in the world, all of them here in the mountains.

Like salmon, but on a smaller scale, the sicklefin redhorse swim upstream to spawn. But the Dillsboro Dam blocked them from doing so. Removing the dam will it allow access to new spawning grounds.

The sicklefin redhorse traditionally returns to where it hatched to spawn. Since the fish currently aren’t found upstream of the dam, it could take generations for them to discover the new territory if left to their own devices.

But Fish and Wildlife biologist have lent a helping hand by rearing sicklefin redhorse in captivity and releasing newly hatched fry upstream of the dam every year, imprinting the fish to return to the same spot one day when laying eggs of their own.

The sicklefin redhorse don’t spawn until the fifth year of their life, but the biologists are now in the fifth year of the releases — with a total of about 5,000 released over that time. Within a year, the first of those imprinted fish should reproduce naturally on sections of the Tuck upstream of Dillsboro, giving rise to a new population of the threatened sicklefin.

U.S. Fish and Wildlife has conducted species assessments above and below the dam, and will watch eagerly to see if the numbers and diversity increase in the years following dam removal.

“This is what it is all about,” Cantrell said. “The intent of dam removal is to see these environmental benefits.”

 

As the dam came down

While the river ecology will improve over the long run with the dam down, biologists were concerned about immediate impacts of chunks of the dam and backlogged sediment washing downstream during the demolition process. While Duke was required to dredge some of the sediment prior to demolition, a lot still remained.

“As the water levels drop, we will see some of that sediment that was previously sequestered behind the dam be redistributed downstream,” said Cantrell, whose agency is monitoring ecological issues in the Tuck before, during and after dam demolition.

A large cloth net was strung across the river to strain out debris coming down, but it wasn’t a catch-all.

So water monitoring stations were set up above and below the dam to measure sediment during demolition. If sediment levels got too high, the rate of demolition could be slowed. Another tactic would be releasing more water from Duke’s other dams higher up the river to dilute the ratio of sediment in the water being flushed downstream, Cantrell said.

Safety precautions were also in place, including a lifeline strung across the river should a worker fall overboard, and a motorized lifeboat moored at the river bank to go after someone.

 

What’s next?

As onlookers watched the water level drop last week, they braced themselves for the ugly scene that would be revealed: a giant, barren pit of mud and muck stretching along the riverbanks.

Duke is supposed to do steambank restoration to kick-start revegetation, and it’s something both the community and biologists hope Duke will do well.

Duke is working on a massive landscape plan to revegetate the banks, according to Hugh Barwock, the project manager for dam removal and a senior environmental resource manager for Duke out of Charlotte.

TJ Walker, owner of the Dillsboro Inn, is keeping his fingers crossed that Duke does a good job with streambank restoration. For now, the view from his inn on the banks of the Tuck is that of a fresh mud flat. But Walker says the project manager has promised it won’t look that way for long.

Walker initially fought dam removal, but backed down a couple of years ago.

“My sense of abandonment is replaced with a sense of hope,” Walker said last week.

 

Want to learn more?

The Fish and Wildlife Service has created a Web site dedicated to removal, including demolition photo and facts of environmental benefits at www.fws.gov/asheville/htmls/projectreview/DillsboroDam.html

The seven-year battle between Jackson County commissioners and Duke Energy has come to a close.

After losing a critical court battle this month, Jackson County commissioners voted 4 to 1 to give up their legal fight against Duke Energy last week.

“It is not prudent for Jackson County to move forward any further,” County Commissioner Chairman Brian McMahan said of the commissioner’s decision.

Recently, the fight has appeared nothing more than a tug-of-war over the Dillsboro Dam: Duke wants to tear it down and the county wanted to save it.

But the origin of the conflict is philosophical: how much does Duke owe Jackson County in exchange for harnessing the Tuckasegee River with numerous dams? Duke proposed removing one of those dams — the small and ancient Dillsboro dam — as compensation for using the Tuck in its lucrative hydropower operations, which net the utility millions annually.

Duke contends the river will be better off environmentally without the Dillsboro dam and it will open a new stretch of free-flowing river to paddlers and rafters.

Therein lay the crux of the disagreement, however. The county didn’t want the dam torn down, so it should hardly count as compensation, said Commissioner Joe Cowan, who voted against giving up the fight.

“It’s a bum deal,” Cowan said. “Duke ought to be ashamed of itself as a large corporation to attempt to pull such a stunt on the intelligent people of this county. I resent the hell out of it.”

Cowan gave a strongly worded speech directed at Duke at the meeting Tuesday.

“Why did they want to take the dam down? Because they didn’t want to give the county anything,” Cowan said.

Cowan said taking down the dam was a grand scheme on Duke’s part, a ruse intended at duping local people into believing Duke was doing them a favor by taking down the dam. But Cowan said Duke was only looking out for its own monetary interests by offloading a small, aging dam instead of real mitigation.

“Had it not been for greed, there would have been no seven years of bickering with Duke Power,” Cowan said. “Duke had many opportunities to step up and do the right thing as a good neighbor would do. Duke hasn’t done that. They have resisted it.”

The other four commissioners who voted to call it quits clearly did not revel in their decision.

“Seven years has been a long time and looking back on what has transpired, I still feel as strong today about my position on saving the dam as I did then,” said McMahan. “I grew up there learning to fish. It holds a sentimental place. It is going to move into our history now. It is going to become a part of our past.”

Commissioner Tom Massie, who has been urging the rest of the board to throw in the towel for over a year now, said he hopes the county and Duke can mend fences and work together in the future.

“It is unfortunate it has gotten to this point in terms of the legal costs and wrangling that has gone on,” Massie said. “I am glad it is over with.”

It’s one statement Duke agreed with.

“We at Duke are, as one of the commissioners remarked, glad it is over with,” said Fred Alexander, Nantahala district manager of Duke Energy. “About 10 more miles of free flowing Tuckaseigee River and improved aquatic habitat should benefit fishermen, boaters, and the critters in the water.”

Several members of the public took a turn the podium to thank the county commissioners for putting up a valiant fight.

“I came tonight to applaud you — applaud you for giving us leadership in your efforts to retain the Dillsboro Dam, as a historical site, as a viable source of sustainable energy and as land to be used by all the residents of Jackson County,” said Susan Leveille, an artist with a gallery in Dillsboro. “You have strived well to lead us toward the moral high ground of not just thinking of ourselves today but for making wise decisions with regard to the people, the land and the resources.”

Supporters said Jackson did the right thing by standing up to Duke, even if the cards were stacked against them.

“I also want to commend this board for doing everything they could to save the dam and the powerhouse,” said Tim Parris, a resident of Dillsboro. “I do realize you were up against a fight with a corporate giant in Duke Power — not only that but you had to fight the special interest groups like American Whitewater. The landscape is changing at Dillsboro, but I can tell you it is not what the people of Dillsboro want.”

But Sam Fowlkes, a paddler who is pleased the dam will finally come down, chastised commissioners for wasting so much money on an ill-conceived strategy.

“I am sure lawyers who get billable hours will always have more options for you, but it kind of looks like game over,” Fowlkes said prior to the board’s vote to end their legal fight.

Fowlkes said the big winner isn’t Duke, but rather Jackson County’s attorney throughout the protracted standoff.

“Win or lose, it is more money for him,” Fowlkes said. “The losers? The taxpayers. I am one of them.”

The county does not have a final tally of its legal bill, but the most recent total was between $200,000 and $250,000.

Commissioner William Shelton congratulated Duke on its win.

“I grew up on the Tuckasegee River and have watched it about every day in my life,” Shelton said. “This has been a gut wrenching experience for me. There has not been one easy thing about it.”

The county will likely not have another opportunity to extract mitigation from Duke Energy for 30 years, when the hydropower license comes up for renewal again.

Demolition of the powerhouse has been completed and dam work will start in a couple of weeks.

“It was like a knife going through my heart,” said Starlotte Deitz, a Dillsboro resident and Duke opponent, who watched the demolition last week. “It is an icon that can never be replaced. You can’t put a money value on that.”

By Joe Cowan • Guest Columnist

Editor’s note: Jackson County Commissioner Joe Cowan made the following comments following a vote last week to stop legal proceedings against Duke Energy over its plan to take down the Dillsboro Dam, the centerpiece of the utility giant’s mitigation for a new license to use water from the Tuckasegee and its tributaries for the next 40 years.

 

Having observed this all my life, and the power company before Duke — Sylva-Dillsboro Electric Light Company, where my father worked for a few years — I’ve got some attachment to the dam and some interest in the relationships in the past and hopefully the type of relationship we may have in the future with Duke Energy.

I, too, observed the stakeholder meetings that have been referred to many, many times in the past seven years. Those stakeholder meetings, in my honest opinion, were a farce, nothing but a ruse to try and dupe good local people into believing that Duke Energy had the best interest of the people of Jackson County at heart rather than the monetary gain and interests of Duke Energy. That, to me, is a fact.

Greed. That’s the word I hear used frequently when large utility companies are referred to, greed. In my opinion, had it not been for greed, there would not have been seven years of bickering with Duke Energy.

Why did Duke want to take down the Dillsboro Dam? They haven’t said. They said many times in their proceedings that it was a linchpin of their proposal for a settlement, but why did they really want to take it down? It didn’t benefit Duke, didn’t do anything for 20 miles upriver. It’s not going to improve the environment of the river or what lives in it. Matter of fact, there is some evidence just the opposite of that.

Let’s get to why they want it down. Most of the time when an energy or utility corporation is asking to use someone’s water — and that’s what it is, asking to use the water of Jackson County for the next 40 years and make somewhere in the neighborhood of $16 million profit per year — you would think, just as a good neighbor policy, or if nothing else for the good will, the industry would have some desire to give back something to the people from whom this water use is being taken.

This is the thing that burns me up about the whole darn thing. There has been little to no evidence to this date that Duke Energy has been willing to give back even a token to this county for the use of their waterways for the next 40 years. And you multiply $16 million times 40 years, and see what you come up with. You’ll come up with a lot more than two or three hundred thousand dollars, which is the total that Duke offered, the token that Duke has offered.

Duke has had many opportunities to step up and do the right thing as a good neighbor would do. And in many cases others have done that, been good neighbors to Jackson County. Duke has not done that. They have no desire to do it. Thus seven years of bickering back and forth, back and forth.

Why do they want to take the dam down? They did not want to give the county anything, $250,000 or somewhere along there. That’s an insult for the use of the Tuckasegee River and its tributaries to the south for the next 40 years. An insult.

So they came up with this grand scheme: we will take down the dam for you. It reminds me a lot of the elderly lady crossing the street. A Boy Scout was out there helping her. They got to the other side and woman slaps the Boy Scout. A passerby saw her and said, “My God, what happened?” The lady said “I did not want to cross the dam street.”

Well, that’s what we’re dealing with here with Duke taking the dam down. We did not want the dam down, but Duke is going to do us a favor and take the dam down to show good faith to FERC. “Look what we’ve given Jackson County for the use of their water for the next 40 years.” Big deal, I hope Duke knows that.

.... It’s a bum deal. It’s a bum deal. Duke ought to be ashamed of themselves as a large corporation to attempt to pull such a stunt on the intelligent people of this county. I resent the hell out of it, and I think I’ve made that clear. That’s been my involvement in it, and as far as I’m concerned I hope it’s not over yet. We’ve still got 30 days to appeal this thing.

The seven-year battle between Jackson County commissioners and Duke Energy has come to a close.

After losing a critical court battle last week, Jackson County commissioners vote 4 to 1 to give up their legal fight against Duke Energy at a meeting Tuesday night (Jan. 19.)

“It is not prudent for Jackson County to move forward any further,” said County Commissioner Chairman Brian McMahan.

Of late, the fight has appeared nothing more than a tug-of-war over the Dillsboro dam: Duke wants to tear it down and the county wanted to save it.

But the origin of the conflict is philosophical: how much does Duke owe Jackson County in exchange for harnessing the Tuckasegee River with numerous dams? Duke proposed removing one of those dams — the small and ancient Dillsboro dam — as compensation for using the Tuck in its lucrative hydropower operations.

Therein lay the crux of the disagreement. The county didn’t want the dam torn down, so it should hardly count as compensation, said Commissioner Joe Cowan, who voted against giving up the fight.

“It’s a bum deal,” Cowan said. “Duke ought to be ashamed of itself as a large corporation to attempt to pull such a stunt on the intelligent people of this county. I resent the hell out of it.”

Cowan gave a strongly word speech directed at Duke at the meeting Tuesday.

“Why did they want to take the dam down? Because they didn’t want to give the county anything,” Cowan said.

Cowan said taking down the dam was a grand scheme on Duke’s part, a ruse intended at duping local people into believing Duke was doing them a favor by taking down the dam. But Cowan said Duke was only looking out for its own monetary interests.

“Had it not been for greed there would have been no seven years of bickering with Duke Power,” Cowan said. “Duke had many opportunities to step up and do the right thing as a good neighbor would do. Duke hasn’t done that. They have resisted it, thus seven years of bickering back and forth, back and forth.”

The other four commissioners who voted to call it quits clearly did not revel in their decision.

“Seven years has been a long time and looking back on what has transpired I still feel as strong today about my position on saving the dam as I did then,” said McMahan. “I grew up there learning to fish. It holds a sentimental place. It is going to move into our history now. It is going to become a part of our past.”

Commissioner Tom Massie, who has been urging the rest of the board to throw in the towel for over a year now, said he hopes the county and Duke can mend fences and work together in the future.

“It is unfortunate it has gotten to this point in terms of the legal costs and wrangling that has gone on,” Massie said. “I am glad it is over with.”

It’s one statement Duke agreed with.

“We at Duke are, as one of the commissioner’s remarked, glad it is over with,” said Fred Alexander, Nantahala district manager of Duke Energy.

Duke has contended the river will be better off without the dam environmentally. It will also open a new stretch of free-flowing river to paddlers and rafters, including commercial rafting operations.

Several members of the public took a turn the podium to thank the county commissioners for putting up a valiant fight.

“I came tonight to applaud you — applaud you for giving us leadership in your efforts to retain the Dillsboro Dam, as a historical site, as a viable source of sustainable energy and as land to be used by all the residents of Jackson County,” said Susan Leveille, an artist with a gallery in Dillsboro. “You have strived well to lead us toward the moral high ground of not just thinking of ourselves today but for making wise decisions with regard to the people, the land and the resources.”

Supporters said Jackson did the right thing by standing up to Duke, even if the cards were stacked against them.

“I also want to commend this board for doing everything they could to save the dam and the powerhouse,” said Tim Parris, a resident of Dillsboro. “I do realize you were up against a fight with a corporate giant in Duke Power — not only that but you had to fight the special interest groups like American Whitewater. The landscape is changing at Dillsboro, but I can tell you it is not what the people of Dillsboro want.”

But Sam Fowlkes, a paddler who is pleased the dam will finally come down, chastised commissioners for wasting so much money on an ill-conceived strategy.

“I am sure lawyers who get billable hours will always have more options for you, but it kind of looks like game over,” Fowlkes said prior to the board’s vote to end their legal fight.

Fowlkes said the big winner isn’t Duke, but rather Jackson County’s attorney throughout the protracted standoff.

“Let’s not forget Paul Nolan, the big winner. Win or lose, it is more money for him,” Fowlkes said. “The losers? The taxpayers. I am one of them.”

Commissioner William Shelton congratulated Duke on its win.

“I grew up on the Tuckasegee River and have watched it about every day in my life,” Shelton said. “This has been a gut wrenching experience for me. There has not been one easy thing about it.”

Duke Energy could start tearing down the Dillsboro Dam any day after Jackson County lost a final and critical legal battle this week.

Judge Zoro Guice denied a move by the county to temporarily halt demolition on the Dillsboro Dam. Jackson County hoped to exercise eminent domain to take the dam away from Duke and make it the focal point of a new riverfront park along the shore of the Tuckasegee. The county was seeking a restraining order against Duke to stop them from tearing down the dam while the condemnation suit played out.

The case hinged on state’s rights versus federal pre-emption — whether the opinion of a federal agency superseded state law that grants counties the power of eminent domain.

Guice ruled that the Federal Energy Regulatory Commission trumped state law and agreed Duke could proceed with tearing down the dam. After the dam is torn down, the county can use eminent domain to go after the river shore if it still wants to, the judge said.

Fred Alexander, Nantahala district manager for Duke Energy, said in a written statement demolition could begin in early February. Alexander cited the benefits of restoring a section of free-flowing river, intended to offset the environmental impacts of its myriad other hydropower dams in the region.

Jackson County Commissioner Chairman Brian McMahan said he had not had a chance to explore the implications of the ruling as of press time on Tuesday afternoon. The ruling was handed down Monday (Jan. 11).

“We will discuss it fully at our meeting and take some kind of action,” McMahan said of the commissioners meeting scheduled for at 6:30 p.m. on Tuesday, Jan. 12.

The county’s choices are presumably to throw in the towel or appeal the decision.

Commissioner Tom Massie isn’t surprised. For the past year, he has been the lone commissioner opposed to the protracted legal battle. Massie said he supported the county’s stance philosophically but felt the chance of success was too slim to justify the legal costs of continuing to fight Duke.

“I think they had to see for themselves where it was going to go,” Massie said. “Now it has played out to its conclusion.”

Massie said the Tuckasegee River could still make a wonderful backdrop for a park without the dam. Duke had all along planned to turn the river shore over to the county as part of the environmental mitigation required under the Clean Water Act in exchange for operating its other dams.

In a further blow to Jackson County, Duke can proceed with a countersuit for its legal costs, Guice ruled. Duke has filed a lawsuit against Jackson County for legal costs, as well as a lawsuit blaming Jackson County for an abuse of power. Jackson hoped the judge would throw out Duke’s countersuits, but he did not.

“I am disappointed we don’t have more leverage to negotiate with Duke. If we had gotten something more positive from the judge’s ruling, Duke may have been more willing to talk to us about an (out of court) settlement,” Massie said.

After years of battling Duke Energy in nearly every legal arena it could scout out, Jackson County was dealt a major blow last week when the U.S. Court of Appeals denied its plea for federal intervention.

Jackson County is trying to save the Dillsboro dam from being torn down by Duke, and at the same time force Duke to offer up better compensation for the environmental impacts of its network of hydropower facilities in the region. Jackson hoped the U.S. Court of Appeals would step into the fray and send Duke back to the drawing board to reconsider its plans for dam demolition, slated to move forward this winter.

“This brings Duke a giant step closer to river restoration by removing the Dillsboro Dam,” said Fred Alexander, Nantahala district manager for Duke.

After exhausting everything shy of the U.S. Supreme Court, Jackson County’s fate now hangs on a final case with a decision pending as early as next week. Jackson County hopes to exercise eminent domain to take the dam away from Duke and make it the focal point of a new river front park along the shores of the Tuckasegee River.

A lawsuit in Jackson County Superior Court will decide whether the county can go forward with the plan. Arguments were heard earlier this month, but a decision from Judge Zoro Guice is still pending.

Jackson County Manager Ken Westmoreland said the case for eminent domain is much more critical than the U.S. Court of Appeals filing was.

“That was just another one of those procedural administrative challenges. It doesn’t go to the heart of the issue now, which is condemnation,” Westmoreland said.

Duke’s biggest ally has been the Federal Energy Regulatory Commission, which has consistently agreed that tearing down the Dillsboro dam is a good idea and has been unwilling to force Duke into more mitigation.

Jackson County has challenged everything their lawyers could think of to challenge, from state and federal environmental reports to technical jurisdictional issues, pushing mountains of paperwork around over a six-year period.

Jackson County had finally appealed to the U.S. Court of Appeals in hopes it would force the energy commission to give a hard look at Jackson’s stance, but instead the three-judge panel upheld FERC’s decision.

“This decision affirms that FERC acted appropriately in approving Duke’s application to surrender the license and decommission and remove the Dillsboro Dam and Powerhouse,” Alexander said in a written statement.

The appeal did not require an extensive legal investment on the county’s part. It was mostly a matter of rounding up all the paperwork that has previously been filed in various arenas and packaging it with a new cover letter.

“Most of it was just a compilation of things that had taken place over the years, so it wasn’t all that expensive,” said Westmoreland. The county has not gotten a final legal bill for the appeal filing.

Jackson County and Duke Energy squared off this week over the Dillsboro dam, marking the first major head-to-head courtroom battle in the nearly eight-year saga.

Duke Energy wants to tear down the Dillsboro Dam, while Jackson County hopes to save the historic landmark as the focal point of a riverfront park.

Jackson County devoted part of its court time this week to pleading with the judge for a restraining order that would prevent Duke from tearing down the Dillsboro dam.

It could be months before Jackson County gets a legal ruling on its attempt to seize the dam by the power of eminent domain. By then, however, it will be too late, as Duke previously announced it would start demolition in January.

“This is a historic structure that once taken out can’t be recreated,” Attorney David Ferrell argued on behalf of the county. “It’s a structure that means a great deal to this county. The commissioners of Jackson County believe they are speaking for the citizens in trying to preserve this dam and power house. Without an injunction that’s not going to happen.”

Jackson County wants to preserve the historic dam as the focal point of a river park, replete with walking paths, fishing piers, boat docks and picnic tables.

Kiran Mehta, a Charlotte attorney for Duke, said there would be no lasting harm to Jackson’s river park if Duke tears out the dam. If Jackson County wants a dam so much, it can build a new one in its place, Mehta said.

The protracted arguments in Superior Court this week centered on whether Jackson County can use the power of eminent domain to seize control of the dam and stop Duke from demolishing it.

Duke countered that it was obligated to tear down the dam, citing an order by the Federal Energy Regulatory Commission.

“The county’s suit for condemnation is nothing more than a collateral attack upon and an end run around the FERC order,” said Mehta.

Sherin disputed Metha’s characterization of FERC’s order.

“He talks about this FERC order as if it was the tablet that Moses brought down with the Ten Commandments on it. But it’s not that,” Sherin said. “Duke asked to remove the dam. The FERC said OK.”

Sherin said FERC’s order even contains alternative provisions should circumstances change and the dam not be removed after all.

Duke argued that the interplay of federal agencies and the Federal Power Act make federal court, not state court, the proper legal venue for the case. If successful in getting the case kicked up to federal court, Duke could more easily bog down Jackson’s bid to save the dam.

Jackson County argued that state condemnation law, which gives counties the power to seize property for the creation of parks and recreation areas, stands on its own two legs.

“Duke acts as if federal pre-emption is some sort of blanket that wraps itself around this whole controversy and nullifies all of the county’s rights,” Sherin said.

Who wins and loses

Mehta said that Duke would be irreparably harmed if the dam’s removal is delayed by an injunction.

Mehta claimed Duke could be fined by the Federal Energy Regulatory Commission if it didn’t remove the dam on schedule.

The company is currently in the process of dredging decades worth of sediment from behind the dam before its demolition, a process that might have to be repeated if more sediment accumulates during the delay. Duke also had to relocate bats that nested in the old powerhouse, which is also slated for demolition. The bats could take up residence again, prompting a second round of relocation.

Mehta put a price tag on the delays of $3.4 million in costs to Duke.

Ferrell said the claims were “disingenuous.” He said it was ludicrous to suggest Duke would be fined for failing to remove the dam, if a court order was preventing them from doing so. Ferrell asserted that the federal energy commission doesn’t really care if the dam comes down or not, having granted Duke permission at the company’s own request.

Mehta countered that there are other parties who do care immensely if the dam comes down. Removing the Dillsboro dam was a carefully crafted compromise intended to please disparate special interests concerned with the impacts of Duke’s hydropower network in the region. Duke’s permits for 10 other dams are up for renewal, and to get new permits, it had to come up with environmental mitigation that satisfied everyone. Tearing down the dam pleased environmental agencies who want to see the river restored to its natural state. It also pleased paddlers who wanted a free-flowing river.

Jackson County protested, not only out of a desire to save the historic dam, but also on the premise that another form of mitigation would benefit a greater cross section of the public, such as an environmental trust fund to pay for greenway construction along the Tuckasegee.

Mehta said Jackson lost that fight, but hasn’t been able to give up. The attempt to seize the dam for a park is a last ditch effort to bring down the hard-fought compromise, which could send Duke back to the drawing board, he argued.

“There is no way to calculate the loss that would result from a collapse of the settlement agreement,” Mehta said. “It is incalculable really.”

Ferrell called the injunction a “lynchpin” in Jackson’s case. Unless the judge grants an injunction barring Duke from destroying the dam, Jackson County will be precluded from getting its day in court down the road, Ferrell said.

“That’s what we need first and foremost,” Ferrell said.

Judge Zoro Guice, who heard the arguments in Jackson County Superior Court, said he likely wouldn’t have a decision until January.

The state should turn down Duke Energy’s request for a nearly 13 percent hike in utility rates and instead encourage the giant utility to do a better job with the revenues and power-creation capacity it already owns.

There are several good reasons to turn down the request, but perhaps most relevant is the state of the nation’s economy and the utility’s dogged pursuit of more electricity customers and more business at a time when nearly everyone is searching for ways to cut their energy usage. Instead of building additional capacity and seeking new customers, Duke should be modernizing its system, spending more on green energy, and encouraging the public to make use of every energy savings technology that exists.

The proposed rate hike includes a 13.5 percent residential hike increase and a 4.8 percent increase for fuel costs, meaning families served by the utility would see an 18 percent jump in their power bills in 2010. Duke says it needs the money to modernize equipment, help pay for the new Cliffside coal plant and to help service its debt load.

But there are problems with the request, and nearly all of them came up at a public hearing before the Utilities Commission that was held Sept. 22 in Franklin. The overwhelming opinion at that meeting —including that from the Public Staff, a part of the Utilities Commission that represents consumers — was against allowing Duke to implement the increase.

According to Duke, it sold 2 percent less power in 2008 than in 2007 to its North Carolina customers, and company projections are that electricity use will continue to decline. Many would see that as a good sign that we are becoming more energy efficient and that the greenhouse gases associated with burning coal for electricity are in decline. Duke, however, is seeking to expand its business to new areas in South Carolina.

It has already agreed to sell wholesale power to five co-ops, a decision that prompted South Carolina’s state-owned Santee Cooper utility to scrap plans for a new coal plant in the Florence area. North Carolina regulators say Duke’s phased plan for selling power to the co-ops should protect this state’s consumers from rate hikes linked to the sale, but Duke critics argue that the South Carolina deal comes at the expense of people in this state. When Duke is asking for a rate increase to help build a new plant in North Carolina at the same time energy usage here is decreasing, the link to the selling of power to South Carolina is hard to overlook.

Of course there’s also the issue of the Cliffside plant in and of itself. Building dirty, polluting coal-fired power plants is simply out of step with today’s consumers.

Of course, the timing of the rate hike request could not be worse. Unemployment is at 9.8 percent nationally, foreclosures are still occurring at an alarming rate, and many of those who have jobs have taken pay cuts or a reduction in hours. Duke wants to prepare for the future, but at this time almost every business in the country is hunkering down and trying to hold on. It’s the wrong time to push a rate hike on families, small business, industry and local governments.

No matter how you spin this proposal, it doesn’t look any better. The Utilities Commission needs to tell Duke Energy that the proposed rate hike is a bad idea that it won’t approve.

Duke Energy’s rate hike request met strong opposition at a public hearing before members of the N.C. Utilities Commission in Franklin last week.

Duke claims the 12.6 percent hike is needed to pay for upgrades to power plants and infrastructure across its system, including construction of a controversial new coal plant near Marion. If approved, the request would bring the utility more than $496 million per year in additional revenues. Duke says the rate hike will help maintain its credit rating.

Speakers representing environmental groups, local businesses, and local governments — along with plenty of private citizens — were nearly unanimous in denouncing the proposal. The giant utility was criticized for continuing construction of unnecessary coal plants, for its failure to invest more in renewable energy, for the timing of its request during a recession and for its decision to sell power made in North Carolina out-of-state.

“It is unconscionable to force a rate hike in for an unnecessary power plant,” said David Bates, the executive director of the Jackson-Macon Conservation Alliance, referring to Duke’s new coal plant. “There’s no such thing as clean coal, just less dirty.”

Bates spoke during the hearing and at a rally held prior to it in front of the Macon County Courthouse. About 20 protestors listened in at the rally, which was organized by the Sylva-based clean air advocacy group the Canary Coalition.

Duke Nantahala District Manager Fred Alexander told the utilities commission, however, that continued construction of the new coal plant, known as Cliffside, is a “great environmental story.”

“Once we turn the new unit on, we can begin retiring 1,000 megawatts of old coal plants,” he said. The old plants are dirtier than the new coal plant, achieving a net gain to air quality.

The hearing was a formal affair, with speakers swearing on the Bible before offering their testimony. In addition to the hearing officer running the meeting, there were two opposing tables at the front of the room: one for a Duke Energy representative and one for the Public Staff of the N.C. Utilities Commission. The Public Staff acts as a guardian of the public’s interest against the regulated monopoly enjoyed by utilities.

The independent oversight body is against the rate hike, according to Dianna Downey, spokesperson of the Public Staff.

“We have a team of accountants and engineers to study the rate hike request. At this point we believe the rate hike request by Duke is not justified,” said Downing, adding that the findings are still preliminary.

The strongest support for Duke came from John Burton of Bryson City, who is the treasurer for the Nantahala Outdoor Center, which relies on Duke for whitewater releases to accommodate rafting. He urged regulators to keep an open mind when considering Duke’s request.

“Electricity and utility costs have gone up less than everything else. Also, the quality of transmission has dramatically improved,” Burton said. “Duke has succeeded in keeping rates down and in improving reliability.”

Others from the business community, however, criticized the timing of Duke’s rate hike request.

Dan Roland of Franklin is the operations manager for Jackson Paper in Sylva, one of Duke largest commercial customers in the region. He said the company recently decided to expand in Jackson County, and while it expected a rate hike, it was surprised at the size and the timing.

“We are opposed to the rate hike request. While we understand the request, we question the short notice and the size of the increase ... it is a tremendous shock,” said Roland.

 

What’s it paying for?

Part of the debate at the hearing was exactly what Duke’s proposed rate hike will pay for. Many of those speaking against the proposal said the new coal plant, known as Cliffside, is not necessary since the state’s energy usage is declining. Duke, however, says only 20 percent of the rate hike is to fund Cliffside, and it argues it has already spent about $1 billion. State law allows utilities to collect money for new power plants while they are under construction. So even if the construction was abandoned, Duke could still try to recover the money already spent.

In addition to Cliffside, Alexander said the request was to pay for “billions of dollars of investments we’ve already made to build a cleaner and more reliable system.”

But critics said Duke has done little to invest in cleaner energy production or more efficient use of the energy it already produces. Julie Mayfield, the executive director of the Western North Carolina Alliance, urged the utilities commission to deny Duke’s rate hike.

“While there continues to be debate about the percentage of this requested increase that covers infrastructure improvements, previously installed environmental controls and Cliffside, what is clear is this: part of the rate increase is for Cliffside; Duke recently received a 4.5 percent rate increase to cover the increasing costs of coal; and none of the requested increase will cover renewable energy projects or energy efficiency programs,” said Mayfield, reading from a prepared statement.

Avram Friedman, the executive director of the Canary Coalition, said Duke was being duplicitous on several fronts. He said Duke Energy claims the Cliffside plant is to meet growing energy demand in North Carolina, but actual usage in the state is down 2 percent, he said. He also criticized Duke’s recent decision to sell electricity to an energy cooperative in South Carolina and another attempt denied by the utilities commission to sell electricity to Orangeburg, S.C.

“There’s no reason to place this extra burden on electric ratepayers,” said Friedman. “More than 100 new coal plants have been cancelled around the country in the past three years and Cliffside isn’t needed either. It makes much more sense to implement energy policies that will save ratepayers money, by offering economic incentives to invest in energy efficiency in homes, businesses and industry.”

At least two local governments in WNC — Swain County and the Cherokee Tribal Council — have passed resolutions opposing the rate hike request.

The last in the series of public hearings on Duke’s request is scheduled for Oct. 19 in Raleigh.

Duke countersues Jackson

Duke Energy has fired back at Jackson County’s attempt to seize the Dillsboro Dam with a counterclaim of its own.

Duke claims that it is the victim of abuse of process by the county and is seeking damages.

Despite the county’s claims that it wants the dam and adjacent river shore to create a park, Duke alleges that Jackson has an “ulterior purpose.” Jackson County has long been an opponent of dam removal, fighting tooth and nail to save the dam before the Federal Energy Regulatory Commission. Seizing the dam through eminent domain was seen as a trump card and last resort held by the county.

Duke argues the condemnation move is “solely for the purpose of interfering with and circumventing” dam demolition, not a true desire to create a park. Duke claims the county has “willfully misused” its condemnation powers.

Duke further took issue with the miserly sum of $1 Jackson County has offered to pay for the property it hopes to seize. The county would be required to compensate Duke for the monetary value of the dam and shoreline property if condemnation is successful. The county argues that $1 is sufficient, since Duke would be saved the trouble and expense of tearing it down, an undertaking that would have cost more than $1 million. That savings should more than suffice as the monetary compensation Jackson would otherwise owe Duke, the suit argues.

Duke said the snub is “further evidence of the county’s bad faith and improper purpose for bringing this action.”

Duke’s counterclaim filed last week seeks an unspecified sum covering attorneys’ fees and monetary damages.

Page 5 of 10

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