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FERC ruling favors Duke’s proposals

By Sarah Kucharski • Staff Writer

The Federal Energy Regulatory Commission’s final decision on Duke Power’s relicensing applications for its Western North Carolina hydropower plants heavily favors the proposals developed by the utility in a multi-year stakeholder process.

Duke Power has seven dams on the Tuckasegee River in Jackson County as well as dams on the Nantahala, Oconaluftee and Little Tennessee rivers. Duke is now operating on temporary permits while the relicensing process is under way. The new licenses are for 40 years, meaning FERC’s decision will guide river use for nearly half a century.

The final Environmental Assessment (EA) mostly agrees with the original agreement reached three years ago, which recommends removal of the Dillsboro Dam. Jackson County officials and others — including several other local governments — have criticized the original stakeholders’ agreement for offering inadequate compensation to the region.

During a meeting local officials held with Rep. Charles Taylor, R-Brevard, and Sen. Richard Burr, R-N.C., prior to the final EA’s release, Webster town board member and Dillsboro shop owner Susan Leveille said that what Duke is offering as mitigation is “a drop in the bucket.” She criticized Duke’s plans to build duck nesting boxes as being nearly insulting compared to what the company is getting out of the river. If Duke wants something as real and tangible as millions of dollars in profits, the community should get some real and tangible mitigation, Leveille said.

Jackson County Manager Ken Westmoreland said that while the final EA’s recommendations come as no surprise, that’s no reason to give up the fight.

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“It’s far from a done deal,” Westmoreland said. “It’s a long ways before anything happens. There’s a lot to be said and a lot to be done.”

Throughout the process, issuing the environmental assessments has been something that falls on FERC staff’s shoulders. A quick look through FERC’s online library shows that the Duke Power negotiations are far from the only thing on staff members’ minds, as a search spanning just a week’s time returns dozens of documents about projects from Colorado to New England.

“They’re processing this thing just like grinding out sausage,” Westmoreland said. “They simply do not have the time or resources to devote to a complete analysis of every application.”

Consequently, the real battle is just coming up — when Duke’s application goes before FERC commissioners. FERC is in the process of confirming new commissioners to its board. The commission currently has a quorum of three — chair Joseph T. Kelliher, Sudeen G. Kelly and Nora Mean Brownell. Brownell’s term expired last month; however, she has agreed to stay on the commission through August when new members may be sworn in, said Bryan Lee, FERC spokesman.

Marc Spitzer, a member of the Arizona Corporation Commission, has been nominated to fill Brownell’s seat. Philip Moeller, head of the Washington, D.C., office of Alliant Energy Corporation, an electric and natural gas utility based in Madison, Wisconsin, and Jon Wellinghoff, a shareholder with the law firm of Beckley Singleton, Las Vegas and Reno, Nevada who has focused on energy law and utility regulation for the past 30 years — are nominated to fill the remaining slots. If all five slots are filled, it will be the first time there has been a full FERC board since 2001.

The commissioners will make the final decision as to whether Duke receives new operating permits and how. The commission is whom opponents of the original stakeholder agreement need to convince the agreement doesn’t provide enough mitigation.

“Surely they’ll realize there are other options,” said Dillsboro Mayor Jean Hartbarger.

The town of Dillsboro signed the original stakeholders’ agreement, but has since joined in the fight to keep the dam. Hartbarger said that the town’s decision to sign the agreement was under duress, as the town saw no way to push for more mitigation.

“As far as Dillsboro being able to afford to fight them, our board just felt that there was no way,” she said.

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 negotiations table, including Jackson County, weren’t going to sign.

Hartbarger had to do what the town board had directed her to do. But she took comfort knowing that Jackson County held such a strong stance against taking out the Dillsboro Dam. If the county was willing to spend the money and go the extra mile, then Dillsboro’s interests would still be represented.

Town merchants pulled together to sign a petition objecting to the dam’s removal earlier this month. The 23 signers included Hartbarger, as owner of the Jarrett House, Leveille, as owner of Oaks Gallery, John Miele, Linda Kotila, Leslie Rajohn and David Gates amongst others.

The FERC commission is expected to weigh all comments, all community input, and all political push and pull, in addition to the scientific statements put out by FERC staff.

“The commission itself will be very, very thorough,” Westmoreland said.

Since the final EA has come out, only Duke Power has filed any comments in response. The comments, written in regard to a memorandum of agreement between FERC and Duke, indicate that Duke “has no objections” to plans to remove the Dillsboro Dam. However, Duke requests that the FERC commission reconsider its decision to include the Town of Franklin, Jackson County, Macon County, Friends of Lake Glenville and Dillsboro Inn as concurring parties to the memorandum.

“None of these entities will play any role in the management of cultural resources associated with the surrender and removal of the Project,” Duke’s comments state. “In fact, the Town of Franklin, N.C., and Macon County, N.C., are in no way associated with or affected by the removal of the Dillsboro Project.”

This statement goes directly against one made by Franklin Town Alderman Verlin Curtis during the meeting held with Rep. Taylor and Sen. Burr. Since dam removal is at the crux of Duke’s mitigation package, Curtis said that that only way Macon County would see any benefit from Duke Power would be if the dam were kept. Only then would the original settlement agreement be up for negotiation, he said.

As a whole, Macon County has been shortchanged on mitigation, local officials say.

“I fail to see how thy can use removal of a dam as mitigation applying to Lake Emory,” Curtis said during the meeting.

Jackson County’s attorney, Nolan, is working on comments to file in response to the final EA, Westmoreland said. Meanwhile, the region awaits word as to whether Rep. Taylor and Sen. Burr will get involved. Burr and Taylor are forbidden by law from speaking directly with FERC commissioners; however, they could file written comments, which may or may not receive any special consideration.

“All the comments are looked at individually,” said FERC spokeswoman Celiste Miller, who specializes in hydro cases. “I think every comment has be to be looked at on its own merit.”

A call to Taylor’s press secretary was not returned. However, Burr — a member of the Senate Committee on Energy and Natural Resources and a member of the Subcommittee on Water and Power, which includes oversight and legislative responsibilities for hydroelectric power amongst others — is said to have the issue on his radar.

“Senator Burr is monitoring the situation closely,” said a press representative in his Washington office.

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