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Critics say FERC not tough enough on Duke

By Sarah Kucharski • Staff Writer

Since the Federal Energy Regulatory Commission’s draft environmental assessment recommending removal of the Dillsboro Dam has come out, concern has arisen over mitigation measures planned for the Tuckasegee River.

Duke Power is seeking new permits for six dams on the Tuckasegee River. FERC must analyze the environmental impact of those dams and require mitigation from Duke before renewing the permits.

The cover letter to the 402-page draft EA released May 10, reads, “In this draft EA, Commission staff analyze the probable environmental effects of implementing the projects and conclude that approval of the projects, with appropriate staff-recommended environmental measures, would not constitute a major federal action significantly affecting the quality of the human environment.”

River proponents say that’s not true. Reading over the draft EA, Clean Water Management Trust Fund western field representative Tom Massie said that the document acknowledges “short-term” damage to the ecosystem as a result of removing the Dillsboro Dam. Such damages include “significant short-term effects” on the brown bat, which lives in the dam’s powerhouse, also recommended for removal, and on the elktoe mussel.

The mussel does not fare well in warmer waters. Removing the dam would allow warmer waters to flow further downstream, potentially killing mussel colonies, Massie said. Also, removing the dam without dredging behind it would send the silt downstream, potentially settling on the fragile mussels and killing them.

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Furthermore, the EA’s acknowledgement of short-term damage to vegetation and riparian buffers could mean that increased erosion also would pose a threat to the water system all the way down to Fontana Lake.

“They just transferred the problem from Dillsboro to TVA (the Tennessee Valley Authority),” Massie said.

The problem is that “short term” is not quantified. The re-licensing process comes around every 30 to 50 years. Short term in that regard could mean 5 to 10 years, Massie said.

However, some of those who have supported dam removal say that short-term effects could pay off in the long run.

“I do believe the short-term damage will be outweighed by bringing a river closer back to a free flowing state for future generations to come,” said Shane Williams, owner of Dillsboro River Company, located just below the dam. Rafting operations stand to benefit by the removal of the dam, which impedes their operations because rafts have to be carried around dams.

Duke has supported dam removal in part for that reason — it will add about 10 miles of unimpeded river for boating and allow for species migration, according to a statement released by Duke District Manger Fred Alexander. Officials with the N.C. Fish and Wildlife Division have criticized the dam for preventing natural migration.

But even American Whitewater, which signed the original stakeholders’ settlement agreement nearly three years ago, has taken issue with the draft EA, as it removes important mitigation measures relating to recreation.

American Whitewater, a non-profit organization working to restore whitewater rivers nationwide, disagrees with the draft EA’s failure to endorse the original settlement agreement recommendation that Duke Power purchase and manage several river access areas along the Tuckasegee.

“Even though these measures would address the need for additional public access as well as formalize some of the existing undeveloped dispersed use on the Tuckasegee River, these measures do not enhance public access to project lands and waters,” the draft EA reads. “The locations of these recreation-related measures are not within, adjacent, or even near the existing project boundaries, therefore, they are not within Commission jurisdiction and would not be included in any new license for the projects.”

American Whitewater strongly disagrees.

“The Tuckasegee River between the uppermost dams on its forks and its termination in Fontana Reservoir is all project waters,” read Whitewater’s comments written by National Stewardship Director Kevin Colburn. “The river is strongly regulated by releases from the upstream dams and those releases encourage or discourage various types of recreation on the river. The access areas outlined in the [original settlement agreement] allow the public to enjoy these releases provided by the upstream dams — which are expressly timed for their enjoyment in these downstream reaches. The FERC draft environmental assessment agrees that flows can be timed to provide recreational opportunities several miles downstream, so why too cannot FERC support public access to the river so that the public can actually use the releases?”

Last week Jackson County’s attorney hired to work specifically on the Duke Power issue, Paul Nolan, was in the process of working on filing a motion to extend the comment period on the draft. The motion will join one filed by Paul Marston, counsel for the Friends of Lake Glenville, on behalf of the Friends, Jackson County, Macon County, the Town of Franklin, and the Dillsboro Inn owner TJ Walker.

“The Draft EA is 402 pages long and was developed by the Staff during an 18-month long process. In addition, as the Commission is aware, the Draft EA reviews a highly controversial proposal where a competing comprehensive offer of settlement has been filed and where the Commission has formally stated that all reasonable alternatives will be analyzed in the EA,” reads Marston’s filing. “Under these circumstances, we respectfully submit that it is unreasonable — and contrary to the June 27, 2005 Order Denying Rehearing — for the Commission to provide just 30 days to review and prepare final comments on such a complex, lengthy and controversial proposal.”

Martson’s filing continues, “Moreover, the current schedule provides for the on-the-record public meeting to be held just one day prior to the deadline for submitting written comments. We respectfully suggest that this is also unreasonable as it forecloses a meaningful opportunity to integrate the transcript record into the final written comments on the Draft EA. This would essentially circumvent much of the purpose of compiling an official record transcript in the first place. If the public comments are worth being included in the transcript record, there must be a reasonable period of time to review and integrate them into written comments.”

The filing requests that the public meeting be rescheduled to be held June 23 or 26, approximately 45 days after the draft EA’s issuance, with an additional two weeks after the publication of the transcript to conclude the written comment period.

Jackson County attorney Paul Nolan concurred with the Marston filing.

“Despite what FERC has done, the public has a right to be heard,” Nolan said.

Final approval of the draft EA requires an order from FERC.

“Typically, FERC issues a final environmental assessment (EA) after the draft EA comment period,” according to a statement released by Duke District Manger Fred Alexander. “The next step in the relicensing process is issuance of a new license.”

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