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Duke convinces Dillsboro to ‘retract’ letter

By Sarah Kucharski • Staff Writer

Dillsboro Mayor Jean Hartbarger has retracted a letter that could have led to a legal squabble with Duke Power.

Hartbarger had signed a letter requesting that the N.C. Division of Water Quality hold a public hearing prior to re-issuing Duke Power water quality certifications for its dams on the Tuckasegee River. After Duke officials claimed that authoring the letter violated the rules of the original stakeholder agreement the town signed as part of the re-licensing process, Hartbarger asked for the letter back from the state.

“Because of that unique status, their efforts were not in keeping with that agreement,” said Duke Power representative Fred Alexander. “When that was pointed out to them, they retracted the letter.”

Duke Power must obtain water quality certification in order to continue operating the company’s hydroelectric projects on regional waterways. However, water certifications normally would not be approved until the Federal Energy Regulatory Commission issued a license for the hydro projects’ operation, Alexander said.

An application for a water quality certification has a one-year shelf life. Consequently, Duke Power has had to re-apply for certification each year while the region has rehashed and attempted to renegotiate the terms of the original settlement agreement reached three years ago. Each prior application has not had any outside opposition, Alexander said.

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Now, it appears as though the calls for a public hearing may be a last-ditch effort by opponents to go on record before the FERC commissioners make their final ruling on the region’s mitigation package and the terms of Duke’s relicensing.

Duke Power has seven dams on the Tuckasegee River in Jackson County as well as dams on the Nantahala, Oconaluftee and Little Tennessee rivers. The settlement agreement determines what the public gets in exchange for Duke damming and diverting local rivers. Such agreements are negotiated at most every 30 to 40 years, meaning their terms have long-term recreational, economical and environmental impacts.

Jackson and Macon county officials, amongst others, have criticized the original stakeholders’ agreement for offering inadequate compensation to the region. One of the issues at the core of the dispute over the original stakeholders’ agreement has been the removal of the Dillsboro Dam, which many town residents say is a cultural landmark.

The dam has not operated effectively since the floods of 2004 when, literally, a ton of silt collected behind it. If the dam were removed according to Duke’s plan, the silt would be released downstream potentially damaging river ecology.

An alternative to the original stakeholders’ agreement, authored largely by Jackson County Manager Westmoreland in cooperation with the county’s contracted hydropower attorney Paul Nolan, would turn the dam over to the county to run. The dam most likely would be paired with the county’s methane gas recovery project located at the old landfill just outside Dillsboro to help turn the town into a model for green power.

However, the final environmental assessment produced by FERC staff — a document summarizing potential impacts on the region and advising mitigation action — heavily favored Duke Power and the original settlement agreement, recommending removal of the Dillsboro Dam.

Mayor Hartbarger told Dillsboro town board members Monday night (Sept. 11) that her decision to author the letter requesting a public hearing prior to re-issuance of Duke Power’s water quality certifications came as a result of a meeting she attended with Rep. Charles Taylor, R-Brevard, and Sen. Richard Burr, R-N.C., just prior to the final environmental assessment’s release.

Hartbarger said that she was asked to send the letter along with other local representatives. The letter is a form letter slightly modified for each of the signing parties, which also included Glenn Jones, chairman of the Swain County commissioners, Alan Bryson, chairman of the Macon County commissioners, and Brian McMahan, chairman of the Jackson County commissioners.

“We understand that Duke Energy has withdrawn and re-submitted an application for 401 Water Quality Certification for the above referenced projects,” the letter reads. “We feel that this is a controversial action that affects all the citizens of (Swain County/Macon County/Jackson County/Dillsboro and Jackson County). Therefore, prior to your agency taking any action of this request, a public meeting should be held to allow the people of this (County/Town) to express their views about these projects.”

However, the letter Hartbarger signed included slightly different wording from other letters. Where Swain, Macon and Jackson’s letters read “Duke Energy does not plan to carry out any meaningful mitigation measures,” Dillsboro’s says “Duke Energy plans to carry out questionable mitigation measures.”

Also, the Dillsboro letter included an extra line when requesting the public hearing. “As recently as June 2006 nearly all of the business owners in the Town of Dillsboro signed a petition opposing the removal of the Dillsboro Dam,” the letter’s first paragraph reads.

Dillsboro business owners as a collective entity did not sign the original stakeholders agreement and thereby are free of encumbrances and may criticize the mitigation proposal at will without running the risk of legal action. Though as with many small towns — Dillsboro’s population is slightly more than 200 residents — roles often overlap. Hartbarger signed the petition opposing dam removal not as mayor, but as owner of the Jarrett House restaurant.

Hartbarger has said that the town’s decision to sign the agreement was under duress, as the town saw no way to push for more mitigation. The board met and voted to sign the agreement on the condition that they rank their approval of the agreement at a four on the scale of one to five — one represented total approval and five noted grave concerns with the agreement. It wasn’t until after the board vote that Hartbarger arrived to sign the document and found out that several other parties at the negotiating table including Jackson County weren’t going to sign.

However, Hartbarger’s request to the N.C. Division of Water Quality for a public hearing was sent without town board approval. Just prior to Monday night’s meeting, board members questioned about the letters — the request and the subsequent retraction — had no knowledge of either.

“I have no idea what you’re talking about,” said town board member Bud Smith.

The meeting local officials had with Taylor and Burr was held in July, and the letter requesting the public hearing was dated Aug. 25. Dillsboro town officials did not have a meeting in August due to several board members being gone.

Hartbarger waited until the very end of the town board meeting Monday night to bring up the issue, explaining that she had sent the letter, found out it was a violation of the terms of the original settlement agreement, and asked for the letter’s retraction.

“So it’s all taken care of now,” Hartbarger said.

Board members did not seem upset by the mayor’s decision to take action without board approval. Rather, they seemed in support of Hartbarger’s fight for the town’s interests.

“We all appreciate a mayor who is willing to take a risk from time to time,” said board member Mike Fitzgerald.

Board member Jimmy Cabe said that a little opposition wasn’t a bad thing, as the town wasn’t in Duke’s pocket.

“I don’t see that they wrote us a check or nothing,” Cabe said.

“Well, they did,” Hartbarger replied.

Duke gave Dillsboro $50,000 to be used for the town’s Monteith property development, which will is planned to include a park, parking area, community theater and historical museum.

“I don’t want the money, I want to keep the dam,” Hartbarger said.

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