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Locals plead Duke case to congressmen

By Sarah Kucharski • Staff Writer

As the Federal Energy Regulatory Commission hones its final recommendations for the mitigation Duke Power should provide in exchange for using the region’s waterways to produce hydroelectric power, local officials are asking for one thing — more time.

Representatives from Jackson and Macon county governments, including the towns of Webster, Dillsboro and Franklin met with Sen. Richard Burr, R-N.C., and Rep. Charles Taylor, R-Brevard, last Thursday (July 6) to plead their case.

Considering the nominal amount of compensation Duke has offered, the plethora of public comments filed with FERC regarding the relicensing process, and the short amount of time between the hearing held on the draft EA last month and the anticipated due date of a final EA this month, local officials are doubtful that FERC staff and commissioners will give appropriate consideration to the public’s concerns.

Duke Power has seven dams on the Tuckasegee River in Jackson County as well as dams on the Nantahala, Oconaluftee and Little Tennessee rivers. In order to get new permits, the company must mitigate for damming the rivers and diverting them through pipelines. Duke is now operating on temporary permits while the relicensing process is under way.

While lobbying Burr and Taylor to get involved, Jackson County Manager Ken Westmoreland attempted to explain that the draft environmental assessment FERC staff recently released gives too much weight to the original stakeholder agreement reached three years ago and not enough to alternatives since proposed.

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Of the 40 participants in the three-year original stakeholder process, about half signed the agreement, Westmoreland said. Upon signers being asked to rate their satisfaction with the agreement, some — like the town of Dillsboro — indicated that they held grave concerns regarding its terms. Hence, what is supposed to be a community agreement cannot called as such.

“It, in essence, really is not,” Westmoreland said.

However, in addressing Burr and Taylor — both in town on tours of the region — local officials failed to express exactly what they were after in terms of alternatives to the original stakeholders’ agreement beyond maintaining the Dillsboro Dam. The original stakeholders’ agreement recommends dam removal as mitigation for the rest of Duke’s hydroelectric system, a move supported in FERC’s draft EA.

“After evaluating Duke’s proposal and the recommendations from resource agencies and interested parties, we considered what environmental measures would be necessary or appropriate for continued operations of the projects,” the FERC assessment reads. “Based on this analysis, we recommend licensing the East Fork, West Fork, and Bryson projects as proposed by Duke with some additional staff-recommended measures, and the surrender of the Dillsboro Project with removal of the dam and demolition of the powerhouse.”

An alternative, authored largely by 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 outside Dillsboro to help turn the town into a model for green power.

During the meeting with Burr and Taylor, officials failed to ever specifically refer to this alternative, which has become known as the preferred settlement agreement. FERC staff refuses to acknowledge the agreement by such a name, because to include the word “preferred” would indicate the settlement is FERC’s preferred settlement, FERC staff said during the public hearing last month.

Rather than discuss the preferred settlement agreement in total, officials zeroed in on removal of the Dillsboro Dam.

“It’s like taking the courthouse off the hill here in Sylva,” said John Boaze, a biologist with Fish and Wildlife Associates in Whittier, of the dam’s potential removal and its effect on the town of Dillsboro.

Local officials are worried that FERC will simply “rubber stamp” the relicensing application as Duke has proposed, meaning removal of the dam, Boaze said.

However, Burr — a member of United States 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 — questioned whether officials were concerned about any other part of Duke’s relicensing plan.

“Is this about more, or is this about keeping the dam?” Burr asked.

Westmoreland said that it would be a shame to loose a viable green power source.

“We don’t care who owns it or operates it, just that it stays in place,” he said.

In an interview following the meeting, Nolan, a D.C. attorney who specializes in hydropower issues who has been hired by Jackson County to represent them in dealings with Duke, said that an option would be for Congress to look at a federal takeover of the dam — Duke surrender its license, and the federal government in turn hand it over to Jackson County on the condition that the county rehabilitates the plant.

Currently about 100,000 cubic feet of sediment is built up behind the dam — partially a result of the 2004 hurricanes that struck the region — which Duke does not want to remove. Rather, their proposal is that upon removal of the dam, the sediment will wash downstream, which opponents say will damage the Tuckasegee’s ecosystem.

Taylor questioned whether leaving the dam in place, even if it wasn’t working, would be advantageous to the local community. The dam has been heralded as a landmark and tourist attraction, even if not a power generator.

“I believe that Duke did not want to do that,” Dillsboro Mayor Jean Hartbarger said.

Franklin Alderman Verlin Curtis said that the only way Macon County would see any benefit from Duke Power would be if the Dillsboro dam was left intact. Only then would the original settlement agreement be up for negotiation. 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 (in Jackson County) as mitigation applying to Lake Emory,” Curtis said.

Lake Emory, located in Macon County and on an entirely different river than the Dillsboro Dam, has so much sediment that it is now flowing over the lake’s own dam into the waters of the Little Tennessee River. The river is unique across the Southeast in that it still has representatives of all its native aquatic species, and is home to nearly half the fresh water fish species found in the greater Tennessee River system.

Also, the Little Tennessee is home to 19 aquatic species listed as imperiled by the state of North Carolina plus three federally-listed species: the endangered little-wing pearly mussel (Pegias fabula), the threatened spotfin chub (Cyprinella monacha), and the endangered Appalachian elktoe mussel (Alasmidonta raveneliana) — also found in the Tuckasegee and a subject of contention as releasing the sediment behind the dam most likely would kill the mussels.

Removal of the Dillsboro Dam is also supposed to count as mitigation for the Nantahala Lake dam, again leaving Macon without any direct benefit.


Working with deadlines

In short, Boaze said that local concerns must receive adequate consideration before FERC issues a ruling. In the draft EA, FERC staff instituted a self-imposed deadline that the final EA would be turned in by July 14 and a ruling issued July 20.

“We need to make sure that FERC doesn’t go off and make a decision by next Friday,” Boaze said.

However, Burr said that he didn’t expect a ruling to come so quickly.

“I’m not sure if they’re going to be prepared to do anything on the twentieth,” Burr said.

FERC is in the process of confirming new commissioners to its board. It 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 through August when new members may be sworn in.

Technically, the commission is supposed to total five, but two seats have been vacant for about a year, 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, Wis., and Jon Wellinghoff, a shareholder with the law firm of Beckley Singleton of Las Vegas and Reno, Nev., who has focused on energy law and utility regulation for the past 30 years, have been 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.

However, the nominations should not interfere with FERC staff operations.

“I don’t see the advent of three new commissioners here having any impact on the staff level development of a final EA,” Lee said. “However, no one here can say what impact it will have on their deliberations.”

Lee said that generally speaking, FERC staff does not issue an EA one day, and commissioners vote the next.

“It takes time,” Lee said.

How much time is unknown.

“Each of this projects is unique. They present their own set of facts. There are no benchmarks,” Lee said.

Commissioners attempt to consider each piece of evidence entered in a case prior to making their ruling, even comments filed late in the process, Lee said.

Representatives like 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.”

In Buffalo, N.Y., Congressman Brian Higgins, D-Buffalo, spearheaded efforts to make the local power authority double its original financial offer in exchange for approval for the authority’s bid to renew its license to operate the Niagara Power Project for another 50 years. Higgins refused to back down from Republican Gov. George E. Pataki — who had made appointments to the power authority — and instead introduced a bill ordering the authority to pay $1 billion to a new local agency to rebuild the downtown waterfront and harbor. The bill, with the help of one Sen. Hillary Clinton, worked.

Consequently, Jackson County’s attorney Nolan said that Burr and Taylor could potentially helping the local community get what it wants from Duke.

“I think if they want to, there’s a lot they can do,” Nolan said.

During the meeting last week, Burr asked local officials if Duke suddenly decided to hand over the Dillsboro Dam, would that make them happy.

“I would be partially happy,” said Susan Leveille, a Webster Town Board member and owner of Oaks Gallery, which is located close to the dam in the Riverwood Shops.

Leveille said that Duke’s mitigation offer was merely “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 million in profits, the community should get some tangible mitigation, Leveille said.

However, the local officials couldn’t provide real and tangible examples of what it was they were looking for — something that could have at least been summarized by a comparison of the original and preferred settlement agreements.

“I’m still having a very difficult time,” Burr said. “If I can’t communicate to Duke what it is you want, then how can we do anything?”

Finally, Burr proposed that he and Taylor “have a conversation with Duke.” Burr indicated that he disapproved of Duke’s plan to remove the dam without at least removing the sediment behind it.

“It’s hard for me to see how you could remove a dam, allowing silt to flow and get environmental mitigation,” he said.

Following the meeting, Taylor said that there was more to learn about the issue, as he was not yet ready to come to a decision of his own.

“It’s been helpful to hear comments here,” he said.

Taylor concurred that more time would be advantageous in helping all parties at the negotiating table reach a more equitable agreement.

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