Legal wrangling heats up in Jackson’s bid to wrest Dillsboro dam away from Duke

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.

Duke’s rate hike request is poorly timed, not needed

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 faces stiff opposition to proposed rate hike

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.

Dam fight between Duke, Jackson goes to federal court

Jackson County’s lawsuit against Duke Energy to seize the Dillsboro Dam and surrounding river shore through eminent domain has been kicked up to federal court.

Jackson County filed the condemnation lawsuit in state court in August, but Duke attorneys argued that federal law is in play and therefore the case belongs in federal court. While state law allows for the condemnation of land by a county to create parks and recreation facilities, Duke claims that the Federal Power Law governing utilities preempts state statutes.

The case could ultimately come down to the interpretation of both state and federal laws.

Meanwhile, the county was seeking a restraining order against Duke to keep the utility from demolishing, altering or removing any part of the dam or nearby powerhouse while waiting for the condemnation suit to be heard. Jackson County wants to transform the dam and surrounding shoreline of the Tuckasegee into a river park and promenade, replete with walking paths, benches, fishing areas and river access. The dam and powerhouse are intended as focal points and therefore must be protected through a preliminary injunction, Jackson pleaded.

But Duke says it does not plan to start demolishing the dam until January 2010.

For that reason, Jackson County’s request for a restraining order to stave of demolition is unnecessary for the time being, Judge Martin Reidinger ruled.

Jackson County can “refile such motions for a temporary restraining order as may be necessary,” Reidinger wrote in his ruling.

Lawsuit filed to seize Dillsboro dam

Jackson County has formally filed a lawsuit against Duke Energy to seize the Dillsboro Dam and surrounding river shore, using eminent domain to create a public park and in the process save the dam from being torn down.

The county is also seeking a preliminary injunction against Duke to keep the utility from demolishing, altering or removing any part of the dam or nearby powerhouse.

“Duke intends to immediately begin preparing the Dillsboro Dam and Powerhouse for demolition and removal,” the lawsuit states. But any forays toward removal would cause “irreparable harm as these historic structures cannot be replaced.”

Jackson County wants to transform the dam and surrounding shoreline of the Tuckasegee into a river park and promenade, replete with walking paths, benches, fishing areas and river access. The dam and powerhouse are intended as focal points in the county’s Dillsboro Heritage Park Plan, and, therefore, must be protected through a preliminary injunction against Duke, Jackson pleads.

The injunction also seeks to allow county officials to come onto Duke’s property. Duke had threatened the county with trespassing charges if it attempted to do so, keeping the county from surveying the property it plans to seize or conduct an appraisal.

The lawsuit claims the county is within its rights to seize the property under a state statue allowing for eminent domain for the purpose of creating, enlarging or improving a park or other recreational facility.

Duke has previously countered that condemnation would interfere with an order from the Federal Energy Regulatory Commission to tear down the dam. Jackson claims that the “order” to tear down the dam is being misrepresented by Duke and that FERC merely granted Duke permission to tear it down. Once Duke no longer owns the dam, the FERC ruling will become moot, Jackson argues.

Jackson points out in the suit that the hydropower operation at the Dillsboro dam has been offline for five years, and therefore isn’t a core part of Duke’s business operation. In addition, Duke no longer has a federal license to operate the dam, having relinquished it in anticipation of demolition.

The county would be required to compensate Duke for the monetary value of the dam if condemnation is successful. At the time of filing the condemnation suit, the county was supposed to deposit the money upfront in an escrow account with the courts.

However, Jackson County only deposited $1. The county argues that by seizing the dam, Duke has been 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 lobbies for rate hike amidst protest

Swain County commissioners expressed their disapproval of an 18 percent hike in electric bills being sought by Duke Energy to pay for construction of a new coal plant.

Most of Jackson, Macon and Swain counties get their power from Duke.

In a resolution passed unanimously last week, commissioners protested the rate hike on the grounds that this region is partially supported by hydropower, a far cheaper form of power.

Duke has 10 hydropower dams straddling five rivers in the region. Swain County commissioners said they had always been told by Duke that the electric rates in the region would be lower than elsewhere because of those hydropower operations.

The water is free, unlike the fuel that powers coal, natural gas or nuclear plants. Duke’s rates are currently 31 percent below the national average. Other than annual adjustments to cover fluctuating fuel costs, there hasn't been an baseline rate increase since 1991.

Swain County forwarded its resolution to the N.C. Public Utility Commission, which holds final say on a rate increase.

As a regulated monopoly, Duke cannot raise power rates without permission from the N.C. Utility Commission. Duke operates under a profit ceiling. However, Duke claims that it needs to raise rates to cover the construction costs of a new $2.4 billion coal plant being built near Hickory and the increased cost of coal. The company has another $2 billion in capital investments in new power lines and pollution controls on plants.

Of the 18 percent hike, 13.5 percent would cover capital costs for projects like the new coal plant while 4.5 percent is intended to cover the increased costs of coal, according to Avram Friedman, director of the Sylva-based Canary Coalition. One theory is that Duke is asking for a bigger rate increase than it expects to get in anticipation of bargaining down.

Friedman proposes an alternative solution: don’t build the new coal plant.

Duke says the new coal plant is needed to meet the future demand for electricity. Friedman says the public should scale back its appetite for power. Instead of building a new coal plant, the money should be invested in energy efficiency programs and renewable energy, Friedman said.

“The Utility Commission must stop allowing Duke Energy to waste customers’ money while risking an environmental and health tragedy,” Friedman said. “North Carolina wants to be part of the national surge toward energy efficiency and clean power that is creating thousands of jobs everywhere.”

A bill passed by the state legislature in 2007 allowed utilities to start billing ratepayers to front money for new plants while still under construction. Previously, utilities couldn’t enact a rate hike tied to a new power plant until that plant came on-line. It forced utilities to secure financing for new plants through the financial markets rather than on the backs of rateplayers. Under the old financing rules, Friedman doubts the coal plant would have been built.

Friedman was among 43 arrested for a peaceable mass demonstration against the coal plant at Duke Energy’s headquarters in Charlotte on Earth Day this April, going down in history as the largest act of nonviolent civil disobedience on climate change in the country.

Outfitters brace for early end to season

By Julia Merchant • Staff Writer

Whitewater releases from the Nantahala Lake dam will be suspended in October, forcing rafting outfitters downstream in the Nantahala Gorge to miss out on critical fall tourist season.

Rafting outfitters rely on a predictable flow of water released upstream by Duke Energy, which has a hydropower operation below the Nantahala dam. But starting Oct. 5, Duke will shut down its 67-year-old generator for maintenance and cease water releases.

“There’s going to be two to four weeks lost revenue for sure, and a lack of things for tourists to do,” said Steve Matz, owner of Adventurous Fast Rivers Rafting and president of the Nantahala Gorge Association.

Matz said he wishes Duke had held out on the repairs for a few more weeks.

“The community is a little unclear as to why this could not have been delayed until after the tourist season,” Matz said. “Especially in a recession year like this. It’s a tough year for everybody.”

Other rafting outfitters say that while they’re taking a hit, they understand the repairs must be done to avoid a more detrimental scenario.

Mark Thomas, owner of Paddle Inn, estimates he could lose as much as $15,000 by shuttering his business early. But he’d rather see Duke perform maintenance in fall than risk an unplanned shutdown in summer.

“If this thing broke during this time of the year, that $15,000 would turn into something much larger than that,” Thomas said.

Ken Kastorff, owner of Endless River Adventures, agrees.

“None of us were enthused, but when you take a look at the alternative and the chance of having a problem, it was for sure the lesser of two evils,” Kastorff said. “I wish it could have been done at a different time of year, but you have to consider, this isn’t taking your car to the mechanic. It’s a bit of a bigger job.”

In a press release, officials at Duke Energy expressed their reasoning that a three-month, planned outage is better than a six- to nine-month unplanned one. They also said they will limit the repairs to the tail end of the rafting season, and gave Gorge businesses plenty of advance notice.

“One of the things that we do proactively is let people know our intentions as early as we can,” said Fred Alexander, Duke’s district manager for community relations.


Piece of the tourism puzzle

Outfitters concede that October isn’t their cash cow, compared to, say, July.

“If you take a look at the whole scope of things, October really isn’t that busy a period of time,” said Kastorff.

But the month, which marks the end of the whitewater rafting season, is important for other reasons. Keeping people employed is a major one.

“It’s not peak season by any means, but it still helps feed those who are here,” Matz said.

Matz said the repairs will mean people who need to work “are cut short by a month, so there’s going to be more unemployment.”

While rafting itself may not be a big draw in the fall, the industry plays an important role as an entertainment option for the many tourists who flock to the mountains during leaf season. Fall color, the Great Smoky Mountain Railroad, and rafting together work to entice visitors to the far western region.

“In many cases, all three of those things go hand in hand with tourism,” said Kastorff. “Losing one of them I think is going to have a negative impact on the overall tourism of the area, and on hotels and restaurants.”


Making do

Rafting outfitters are figuring out how to compensate for the loss of business.

Thomas said his company is booking as many trips as possible prior to October while making sure to communicate the shutoff with customers.

“We’re just doing the best we can to get everybody on the river, and telling as many as we can that the river’s shutting off early,” Thomas said.

Kastorff said he’s concentrating on diversifying the activities his company offers.

“We’re going to go ahead and have a lot of other activities we’ll offer folks on the weekend,” like lake tours, kayak instruction, or day trips to other nearby rivers, said Kastorff.

Others are throwing up their hands in acceptance of the situation.

“There’s not a whole lot you can do,” acknowledged Matz.

However, the blow may be softened a bit by the fact that outfitters have already done surprisingly well this season, despite the shaky economy. Thomas, for instance, reports that June business was on par with 2008 numbers, and that July, “has just blown the lid off,” far exceeding numbers from the past few years.

“It’s been fantastic,” Thomas said.

Thomas’ case may be an exception, but other outfitters seem to be holding their own.

“I don’t think we’re setting any records, but I think we’re on track,” Matz said. “People are still spending money, and people are still here.”

Matz theorized that his guests are cutting out more lavish trips to the Bahamas or Europe in favor of low-cost getaways within driving distance, like Western North Carolina.


Nod to Duke

Repairs to the generator should be completed by December, Alexander said. Duke Power has already started lowering Nantahala Lake levels in anticipation of the repairs, though at a slower rate than was initially planned. By Aug. 15, the lake will be at 10 feet below normal levels. By Labor Day, it will sink to 35 feet below. By Oct. 5, the date repairs start, it will be 60 feet below normal.

While outfitters may grumble about the repairs, they do acknowledge that overall, Duke has been a good partner when it comes to managing the flows out of Nantahala Lake.

“It’s as good a flow as we’ve ever had,” Matz said. “We get really great, consistent flows, and they manage the lake levels really well.”

Thomas said that when the lake was under the control of Nantahala Power and Light, the former hydropower owner, the river could stop running without an explanation, leaving outfitters in a lurch. Thomas called Duke “a tremendous asset.”

“Nantahala Power did an okay job, but Duke is right on the money,” Thomas said.

Can Duke supporters sleep at night?

By Carl Iobst • Guest Columnist

Over the past few weeks several individuals and one media outlet have provided Jackson County citizens with a comedic Greek Chorus concerning the Jackson County commissioners and their decision to condemn the Dillsboro Dam and the land around it. News stories that have been written about the commissioners supposed ‘exercise in futility’ have come seemingly from a corporate spin doctor’s pen. Other individuals have attempted to “shame” us for not ‘doing the right thing’ and allowing Duke to have its way and destroy a county icon and significant cultural resource.

One individual claims that the powers of a private corporation (Duke) supersede the powers of a duly elected body (Jackson County Commissioners). Pardon me; I thought that the United States was a republic and not an oligarchy. Things change I suppose, despite ‘silly little pieces of paper’ such as the Constitution of the United States.

The supposed “cornerstone” of the integrated Nantahala/Tuckaseigee 2003 Settlement Agreement was actually an “agreement” rammed though by Duke as a sop to the “stakeholders” and their own selfish agendas. This silenced the rest of the environmental community and curried favor with the Federal Energy Regulatory Commission (FERC). Duke’s “Great Fear” is that they won’t get another half century of a licensed monopoly on hydro-electric production in Jackson County and make hundreds of millions of dollars from us, the rate-payers.

Yes, it is truly an absolute shame to see Jackson County’s limited natural and cultural resources raped once again. A huge electric power monopoly and a few selfish, self-centered ‘stakeholders’ are going to get what they want — no matter the cost. And the public be damned!

Regardless of the outcome of the FERC re-licensing process, I pity the poor souls (and there have been quite a few) who would sell themselves and the cultural resources of Jackson County for little more than, comparatively speaking, 30 pieces of silver. I can sleep at night; can they?

Carl Iobst is secretary of the Jackson County Citizen Action Group and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

Duke starts dredging above Dillsboro Dam

Duke Energy has begun work preparing a site along the Tuckasegee River upstream of the Dillsboro Dam in order to start dredging the river there.

While virtually everyone agrees the dredging is a good thing in and of itself, the fact that it is a prerequisite to tearing down the dam next year leaves all aspects of the project mired in controversy.

A site adjacent to the river along the slow-water pond created by the dam was cleared on July 1. It will be used as a staging area for siphoning out sediment backlogged behind the dam. A series of settlement ponds will separate sediment from the river water, allowing increasingly smaller particulate and fine organic matter to settle out before water flows back into the river.

An estimated 100,000 to 120,000 cubic yards of sediment have accumulated behind the Dillsboro Dam. Duke was mandated by the state to remove at least 70,000 cubic yards before it can tear down the dam to keep the sediment from washing downstream.

The dredging “is something they should have been doing for years,” said John Boaze, a biological consultant with Fish and Wildlife Associates and an opponent of dam removal. And, “I hope that when they get it done in Dillsboro they’ll move to Bryson, Lake Emory in Franklin, Mission over in Clay County,” Boaze said, listing some of Duke’s other dams that also have backlogged sediment behind them.

Boaze is concerned that Duke only has to remove 70,000 cubic yards rather than all of it.

“From the river’s standpoint, removing the sediment would be a good thing. They should remove it all,” Boaze said. Boaze said there was no basis for the state to arrive at 70,000 cubic yards as the magic number.

Kevin Barnett, an environmental specialist for surface water in the state Division of Water Quality’s Swannanoa’s office, said he thinks 70,000 cubic yards is sufficient to protect downstream water quality when the dam is removed. Barnett’s concern, however, is making sure sediment doesn’t end up getting transported downstream during the dredging process itself.

“The number of cubic yards removed is less important as opposed to how much material is transported downstream that would negate the intended effect of the work,” Barnett said.

To ensure this, Barnett said he would be checking — and Duke would be regularly reporting — on turbidity both upstream and downstream of the dredging work in order to monitor downstream deposition of sediments.

At the dredging site, Duke corporate spokesman Andy Thompson in Charlotte said the endangered Appalachian elktoe mussel could benefit from the dam’s removal, as upstream and downstream colonies would be able to mingle and create a larger, more viable population.

“I don’t really go along with that theory. We’ve already got mussels upstream and downstream,” Boaze said. “You’re going to mostly kill the ones downstream” due to habitat disruptions from the dam’s removal, no matter how carefully done.

Boaze said a better idea is to leave the dam but to create bypass waterways alongside it.

“I have a design: a fish passage put in place allowing them to go upstream and downstream, and kayakers to go downstream,” Boaze said.

Duke initially said they would do the dredging as part of the dam-removal plan if they could find a market for the sediment to offset the cost. But heightened attention to the project led the state to end up requiring the dredging.


All for naught?

The removal of the dam is in question, however, as Jackson County has moved to condemn the site. Jackson would like to seize the dam and adjacent shore to create a river park, which would serve as a scenic and recreational attraction. Jackson would also like to operate the dam as a form of green power.

Asked why Duke is proceeding with the dredging when it might be blocked from removing the dam, Thompson said Duke is confident the attempted condemnation will fail.

“It does not appear to Duke that Jackson County would be allowed by the applicable laws to condemn the Dillsboro Hydroelectric Project,” Thompson said. “Under the Federal Power Act, a hydroelectric plant can only be condemned by a county or municipality for the generation of hydroelectricity.”

Thompson added that state law does not provide for the use of condemnation to acquire a hydroelectric facility for power generation purposes. He said Duke “will certainly vigorously oppose any attempt by the county to condemn the Dillsboro Dam.”

County Manager Ken Westmoreland wasn’t concerned about Duke going to the trouble and expense of doing the beneficial dredging even while they might end up being prevented from removing the dam.

“The dredging is overdue. They should have been doing it under their previous license,” he said. “Our position is they’re simply doing it in compliance with their existing license — that they’re obligated to do periodic cleaning and dredging at all of their facilities.

Despite the dredging, Westmoreland says nothing is a fait accompli.

The removal of the dam is still very much in question,” Westmoreland said.


The compromise

The proposed dam removal arose as a compensatory move by Duke in exchange for renewing federal permits for power-generating dams on other rivers throughout the region.

Removing the Dillsboro Dam to restore the section of the Tuckasegee to free-flowing status was offered by Duke as a benefit in exchange for the impacts of the other dams. However, the county and some area residents prefer to retain the historic dam. Other critics say dam removal does not serve as adequate mitigation, particularly for Duke’s dams on other rivers.

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