An attorney for Duke Energy gave Jackson County commissioners a “friendly reminder” this week to stop dragging their feet on turning over permits that will pave the way for the demolition of the Dillsboro Dam.

Before Duke can tear down the dam, it must dredge sediment backlogged behind it. Jackson County, which has been at loggerheads with Duke for several years over dam removal, has resisted issuing the permits.

Duke Energy went to court over the issue and won a ruling by Judge Laura Bridges that forces the county to provide the permits, despite appeals over dam removal that are still in play at the federal and state level. Jackson County feared that releasing the permits would hurt its chances in the pending appeals.

Despite the court order, Jackson County has continued to put up resistance. The county agreed to issue a permit, but only with a disclaimer that the county wouldn’t be liable if anything went wrong during dam removal, be it environmental or human safety. Other conditions involved safety parameters.

Duke refused to accept the permit with the disclaimers and conditions and has accused the county of violating the court order. Duke Attorney Molly McIntosh gave the county a last chance to comply this week before going back to the courts.

“I have tried, I think today is the third time I tried, to get the permits without conditions,” McIntosh told the commissioners at their meeting Monday night (May 4). “Mrs. Cable told me she was told to hold the permits until after tonight’s meeting. The order doesn’t say anything about conditions on the permits. If we don’t get the permits we are going to have to move for contempt in violation of the order.”

Commissioners discussed the permit issue in closed session Monday night. The following morning, the county issued the permits without any conditions, but emphasized it was for sediment dredging only.

The commissioners have been split in recent months over their continued opposition to Duke. Commissioner Tom Massie and William Shelton advocate throwing in the towel on the fight, but remain in the minority.

Duke Energy and Jackson County appeared in court Monday (March 16) to argue over permits related to the removal of the Dillsboro dam.

An attorney for Duke Energy said the court should order the county to issue the permits to Duke.

Superior Court Judge Laura J. Bridgers said she will make her decision after she has had time to review all the documents.

The permits are necessary to dredge sediment behind the dam. Before Duke can tear down the dam, it has to dredge the sediment.

Duke asserted that the county, which wants to save the dam, is simply denying the permits to delay the demolition.

Duke Energy sued Jackson County a few months ago, charging that the county refused to issue a Floodplain Development Permit and a Land Development Compliance Permit to dredge 70,000 cubic yards of sediment from behind the Dillsboro dam.

Duke says it has met every requirement for the permits, but the county still won’t issue them.

“You either meet the requirements or you don’t,” Duke attorney Kiran Mehta of Charlotte said. “You’re not in a position to refuse permits when you meet all the qualifications.”

Moreover, Duke said it has received the go-ahead from the Federal Energy Regulatory Commission to dredge the river and demolish the dam, and therefore doesn’t even need county permits.

Duke asked the court to declare that the Federal Power Act supersedes or “pre-empts” the county permits.

The county said it is not going to issue the permits until all its legal appeals regarding the Dillsboro dam are resolved. Depending on the outcome of the appeals, there could be a modification to how the dam is removed or it may not be removed at all, argued Jackson County’s attorney in the matter, Paul Nolan from the Washington, D.C., area.

Nolan said the permits can’t be granted before the litigation is resolved because the matters are “intrinsically intertwined.”

The county is appealing the FERC order that the dam be demolished to the U.S. Court of Appeals in Washington and is also appealing the state’s issuance of a water quality permit.

Duke wants to tear down the Dillsboro dam as a form of mitigation to keep operating its myriad other hydroelectric dams in the region. The Dillsboro dam is antiquated and no longer produces enough power, Duke says. Tearing it down will improve the environment by opening up the river, which will also benefit whitewater enthusiasts, Duke says.

Nolan told the court that the county wants the dam to stay because it is scenic, historic and a tourist attraction for Dillsboro. It could also be a source of green power if retrofitted.

FERC ruled that the sediment must be removed before the dam is demolished. Otherwise, the sediment could rush downstream and cause environmental problems.

Duke’s attorney, Mehta, noted that the FERC order states that the dam must be removed by July 19, 2010. By failing to issue the permits, Jackson County could prevent Duke from meeting the deadline, Mehta said.

For Duke to meet the deadline, dredging needs to begin by July 1 of this year, Mehta added.

Duke applied for the Land Development Compliance Permit in August 2008 and the Floodplain Development Permit in November 2008 and still hasn’t received either one. Such permits usually only take about a week to issue, Mehta said.

The county was giving Duke the “run around” over the permits, Mehta said.

For instance, after reviewing Duke’s Land Development Compliance permit application, the county planning office determined that a floodplain permit would also be needed but didn’t tell Duke, Mehta said.

Duke had to specifically inquire as to whether it would need another permit. It wasn’t until about three months later that the county informed Duke that it would also need the floodplain permit, which Duke then applied for, Mehta said.

But Planning Director Linda Cable notified Duke that the county would not issue the permits until the appeal regarding the water quality permit was resolved.

FERC does not require Duke to get local permits, but suggests that it should try to abide by local rules to be “good citizens.” But if the local laws cause interference the utility doesn’t have to follow them, FERC says.

Duke claims it tried to be a good citizen and get the local permits, but the county refused to issue them. Mehta said Jackson County refused to communicate with Duke and built walls around the permit process rather than facilitate it.

Mehta told the judge that the county has argued that the Superior Court does not have jurisdiction in the matter because of the other litigation taking place over the dam. But Mehta balked at that, saying, “You have subject matter jurisdiction on anything that walks through the door.”

It doesn’t make sense for the county to not issue the permits, because the county also wants the sediment dredged, Mehta said.

But Nolan, representing the county, said if Duke gets the permits for dredging it is a “slippery slope” toward dam demolition. For instance, if the dredging takes place, a court may be more inclined to go ahead and allow for the dam to be removed.

The holdup with the permits has caused six to nine months of delay, said Mehta, and to ensure there is no more delay, he wants the court to order that the county can’t require any future permits for the dredging.

By denying the permits, the county is attempting to “derail” the FERC order that the river be dredged and the dam removed, Duke asserts.

It’s “obvious that Duke is right and the county is wrong,” Mehta said, adding that it is in the judge’s power to tell the county “enough is enough.”

There was only one member of the public in the courtroom, Sam Fowlkes, who favors dam removal and said the county is spending too much in legal fees on the matter.

Fowlkes said he can’t understand the county’s wanting to save the dam.

‘“It’s an ugly hunk of concrete,” said Fowlkes, who said he is on the board of directors for the American Canoe Association.

Removing the dam would help his sport by opening up the river, he added.

The $400,000 that Duke Energy was expecting to get from the state to help tear down the Dillsboro dam may no longer be available.

The N.C. General Assembly appropriated the $400,000 in 2008, but the money was never certified by the state budget office and thus is not available.

Last week, Fred Alexander, Duke district manager for government and community relations, said he did not know the status of the $400,000. Alexander said the money did not have anything to do with tearing down the dam anyway. He said the money was to be used to “support local economic development and community initiatives in the Town of Dillsboro and to provide additional funding to the Riparian Habitat Enhancement Initiative.”

However, Duke’s application to the state for the $400,000 in 2004 is titled “Dillsboro Dam removal.” The first line of the application states: “Duke Power formally requests $600,000 for removal of the Dillsboro Dam.”

The state’s award was less than Duke’s request.

Franklin and Jackson counties are involved in legal action against Duke Energy to stop the demolition of the Dillsboro dam. Franklin Town Manager Sam Greenwood said he believes the state has “rescinded” the $400,000. Franklin aldermen planned to pass a resolution opposing the use of state tax dollars for dam demolition, but held off upon learning the state funds may be off the table.

That means that Duke will have to fund the full cost of tearing down the dam, Greenwood noted.

A Department of Water Resources document states that as a result of the state budget shortfall the $400,000 has been placed “on hold” and has been removed from the DWR’s budget.

The $400,000 has been the basis of one of the legal fights Jackson County is waging against Duke in hopes of saving the dam. The county has argued that since state funds are being used it kicks in the State Environmental Policy Act, which requires a full environmental analysis of its hydropower operations. Jackson claims the state never did one.

Even if the state withdraws the $400,000, Jackson’s attorney in the case claims the argument is still valid. When the state signed off on dam removal in 2007, there was a chance state money would be used and thus still should have triggered SEPA, Attorney Paul Nolan argues.

Funding to help with dam removal didn’t appear in the state’s budget until 2008. Duke and the state argue they didn’t violate SEPA since at the time the state signed off on dam removal in 2007 the funding hadn’t gone through yet. However, the application for funding was made in 2004, suggesting both the state and Duke knew state funding could be in the pipeline, Nolan said.

— From staff reports

By Anna Fariello • Guest Columnist

OK, so I have to admit that part of the appeal of the Dillsboro/Duke battle appeals to me in the same way that David and Goliath inspired me as a child. Small-town-takes-on-giant-corporation has the makings of movie. While I am into confession, I should admit that I don’t quite get the science arguments, although I am sure there is soundness on both sides of the issue. But overall, it is my practical nature that wonders — if Duke doesn’t want this dam, why can’t Dillsboro have it? The entire battle seems ludicrous as I imagine corporate fat cats strategizing on how to take such a little dam down, plotting where to strategically plant sticks of dynamite.

When I taught in Central America almost 10 years ago, I was struck by how historically significant archeological sites lived side-by-side with spontaneous soccer matches. In this country we protect our national treasures with guided tours and admission fees. Did those ball-kicking children realize that they were in the holy presence of history? There I was sent to teach collections care and soccer was, indeed, not in the preservationist’s handbook.

As the semester progressed and I became more familiar with those sites, my initial shock gave way to an appreciation of what is commonly called “patrimonio” in Latin America. We have a comparable word in English — patrimony — but in cultures where personal property rights reign, the word does not carry the same weight of meaning. Indeed, my Webster’s definition is particularly lacking, defining patrimony as “property inherited from one’s father.” A more professional definition, and one shared by Latin America and other countries, might better define it as “property of the people,” or I should say “property of The People.”

The Dillsboro dam has been around for the better part of a century. It has only been the property of Duke Power since 1988. In the hearts and minds of many Jackson County citizens, the dam is part of their cultural landscape as sure as Cowee Mountain and the Tuckesegee. It is a sweet and picturesque spot, a place to pause and drink in the view.

Most people are familiar with the National Register of Historic Places, the federal program that designates historic buildings and sites as significant to our country’s heritage. Indeed, Dillsboro recently received such designation for the historic Monteith House, bestowing both honor to the town and making the property eligible for tax rehabilitation credits. State law also provides for lesser-known designations, those called historic landmarks and historic districts, which are more local in nature. These designations do not require the same stringent nomination process, nor do they bestow the same benefits as the National Register, but they do enable local governments and citizens to take advantage of a number of credible preservation tools.

Historic landmarks and historic districts are administered by the N. C. Office of Archives and History and governed by specific North Carolina law. Local landmarks are designations that are applied to buildings or structures that have historical, architectural, archeological, or cultural value. While designation is honor, it is also a mechanism to assist with preservation planning and cultural conservation.

The process is not particularly difficult, but state law is specific and the process must adhere to defined procedures. The first step is that the locality — county or a joint commission of county and town managers — must establish an historic preservation commission or historic landmarks commission. This is the body that investigates and designates historic landmarks or districts for the locality that it serves. The commission is created by an ordinance adopted by the local governing board. After a commission is established, the local governing board appoints its members and provides enough support for it to operate. It is the commission that has the authority to designate local landmarks and districts with the state providing guidance and recommendations.

A local historic landmark does not have to be a building. The state allows for sites and structures to be included in the process. Yes, dams are specifically named as a category of “structure.” Once a landmark or district is recommended, the state reviews the designation and makes recommendations. A public hearing must be held. Once process is complete, it is the county attorney who drafts an ordinance to declare a local landmark. Interestingly, the consent of the property owner is not required.

I have pondered the plight of Dillsboro, a town that has had to endure the abandonment of the train, one of its fondest attractions. I have read and re-read explanations of sedimentation and mitigation with a limited understanding. I’ve been proud of the steadfast determination of our local leaders (some would say stubbornness, I am sure) to keep up their fight. Some have proposed making the dam operational and, who knows, the new administration may very well provide federal incentives for this as part of President O’Bama’s efforts to create “green” jobs. The idea of the Dillsboro Dam given designation as a historic landmark is not so far-fetched as it may sound. Surprisingly, Duke Power studied the possibility for itself in 2003. The “Eligibility Study of Seven Hydroelectric Projects in the Nantahala Area, North Carolina” is on the web.

Thinking back to Panama Viejo — “Old Panama,” the archeological site mentioned at the start of this essay — I recall the crumbling stone tower that was threatened with collapse. The National Institute of Culture had mounted a campaign for its salvation, adopting the motto, “Salve Tu Tore” (Save Your Tower).

I still have the mug, given to me by students at the end of the course, with the motto that seemed to be everywhere I looked. In class, we had agreed on the importance of delivering a succinct message that would resonate with anyone regardless of their level of interest or understanding of larger interpretive issues. “Salve Tu Tore” was printed on banners in the street, on the sides of city buses, in large newspaper ads, on tote bags, and coffee mugs. While the professional in me would advise careful planning and deliberate forward motion, the little girl awestruck by the audacity of David is ready to start printing T-shirts.

(Anna Fariello is Director of the Craft Revival and From the Hands of our Elders, projects of Western Carolina University’s Hunter Library. She can be reached This email address is being protected from spambots. You need JavaScript enabled to view it..)

An effort to end a six-year-long dispute between Jackson County and Duke Energy failed in a 3-2 vote last week, as the county commissioners decided to move forward with the case to save the Dillsboro dam.

County Commissioner Tom Massie made a motion to end the legal fight against Duke, allowing the utility to dredge the river and move forward with tearing down the dam.

Massie has been the lone commissioner in favor of ending the fight against Duke, saying it is a waste of time and money for the county to continue. For the first time he was joined in that sentiment by Commissioner William Shelton.

By continuing to fight the matter, Jackson County is “squandering” taxpayer money on an “un-winnable case,” Massie said, adding that some $200,000 has been spent by the county so far on legal fees and technical assistance in the case.

County Commission Chairman Brian McMahan voted against dropping the case because he still thinks it is “winnable.”

Commissioner Mark Jones said the county might as well continue to fight the case because it has already invested so much money and it doesn’t look like much more will have to be spent to see it through.

“I am for the preservation of the Dillsboro dam,” said Jones.

Commissioner Joe Cowan also voted against stopping the fight.

Shelton, even though he voted to throw in the towel, also favors preserving the dam, but thinks it is a lost cause because Duke has so much more money and resources that it can bury the county.

“I agree with the fight in principle,” Shelton said.

Hedging its bets

There are basically three different tracks the county is pursuing to stop demolition of the Dillsboro Dam and to exact higher compensation out of Duke for its host of dams straddling Jackson County rivers.

One track is refusing to issue certain permits that the county says are necessary to tear down the dam. The county says it can’t issue the permits until the other matters are resolved, but Duke thinks the county is simply trying to delay the razing of the dam.

Another track involves a challenge to the state water quality permit needed to tear down the dam. According to the county, the permit is flawed for a host of reasons, from lack of public notice to the lack of a proper environmental review.

The county got word late last week that the challenge, which was previously denied a hearing, now has a green light to move forward under an administrative law judge (see related article).

The final track deals with a federal permit issued by the Federal Energy Regulatory Commission. The county says that permit is invalid because it was granted based on the invalid state water quality permit. The county also claims that FERC has not required Duke to provide adequate compensation to the region and overlooked environmental issues related to Duke’s dams.

That case is now pending before the U.S. Court of Appeals in Washington.

Through the years, several decisions have been handed down against Jackson County, and Massie doesn’t think things will change.

“I am against a federal court challenge,” he stated.

Massie added that the county’s arguments against Duke are merely technicalities.

The permits the county refuses to give Duke deal with dredging sediment backlogged behind the dam. The county says the silt must be dredged to prevent it from rushing downstream and causing environmental problems when the dam is removed.

Duke says it may not even need the county permits because it already has a state permit. But Duke has said it will not move forward without the county permits. Meanwhile, the state permit Duke is relying on is what’s being contested by the county.

Massie sees no reason why the county should withhold the permits for Duke to dredge, saying dredging the river “benefits all.”

There are several reasons why some want to save the Dillsboro dam. The dam is seen by some as a water feature that draws tourists, while others think it has historical significance. The dam could also be used to generate hydroelectricity.

Re-licensing

Duke must have a federal license to operate it series of hydropower dams, but those licenses are up for renewal. In order to get the new licenses, Duke must give back to the area it has profited from.

Duke has profited from using the Tuckasegee River to generate electricity, and therefore should make some payment to Jackson County when it comes time to re-license its dams.

Duke has proposed that it can pay back Jackson County by tearing down the dam, which will open up the river. Whitewater enthusiasts, such as the American Whitewater organization, have favored this.

Shelton said rather than Duke giving something back that benefits the entire county, it is simply pleasing special interests.

Instead of tearing down the dam (which Duke is no longer using to generate power anyway), Duke could give back to the county by providing slope stability and conservation easements, Shelton said.

What Duke is proposing doing for Jackson County “pales in comparison” to what it and other utilities have done in other areas in re-licensing agreements, Shelton said.

Duke may be refusing to give in to the county because it doesn’t want to set a precedent of giving more than it wants to, Shelton said.

Also Duke has proposed to give Jackson County $350,000 over the term of the re-licensing — potentially 40 years. Massie and Shelton agree that $350,000 over 40 years does not come close to compensating Jackson County for what Duke has made off its series of dams.

Shelton said Duke has not acted in good faith and said it is giving “very little back.”

“Our area deserves to be compensated for our resource,” he said.

Shelton said another option is taking over ownership of the dam through condemnation. By giving into Duke, Shelton said he is waving his white flag of surrender but at the same time the flag says, “Shame on Duke.”

In the latest in Jackson County’s quest to save the Dillsboro dam from demolition, the county will get its day in court to argue the merits of a state water quality permit that makes or breaks whether the dam comes down.

The county has secured a rehearing over the permit by an administrative law judge. The judge, Selina M. Brooks, ruled that based upon the county’s arguments there should be a rehearing to determine whether the state violated the N.C. Environmental Policy Act when issuing the water quality permit to Duke Energy.

The county alleges that the state did not assess whether dam removal was in the best interest of water quality compared to other alternatives. The county also charges that the state violated the State Environmental Policy Act by failing to conduct an analysis of the impacts of dam removal.

County Manger Ken Westmoreland said SEPA kicks in when public funds are used for a project, and in this case, the state has allocated $400,000 to help Duke with dam demolition. That should have triggered an extensive environmental review to determine whether state funds are being used in the best way

“They have done no such studies, and those studies don’t just happen overnight,” Westmoreland said.

The rehearing on the state permit could spark a rehearing on Duke’s federal permit as well. Westmoreland said the U.S. Court of Appeals in Washington has ordered the Federal Energy Regulatory Commission to conduct a rehearing into granting Duke a dam removal permit.

As a side note, an endangered species survey of the Appalachian Elktoe mussel is out of date, Westmoreland said. Duke’s survey of the elktoe mussel in the river is three years old, but federal law requires a survey no more than two years old before embarking on an activity that could impact the species’ habitat.

“There is a lot of backtracking that needs to be done,” Westmoreland said.

The attorney representing Jackson County in its legal fight against Duke Energy was expected to meet with county commiseting Tuesday (Jan. 20).

The meeting will fall after The Smoky Mountain News’ deadline, but be sure to check smokymountainnews.com for a Web Extra or any developments in the case.

Jackson County Commissioner Tom Massie said the county’s attorney on the matter, Paul Nolan of Alexandria, Va., was scheduled to meet with the commissioners Tuesday.

In the latest in the legal battle, Duke has sued Jackson County for failing to issue permits the county says are needed to tear down the dam.

Massie said he will have lots of questions for Nolan, including whether the county has a legal basis for withholding the permits from Duke.

Massie has suggested that the county stop fighting Duke in the case and allow destruction of the dam. The county has exhausted all its legal options in the case, Massie has said.

Massie has questioned whether Duke actually needs county permits to tear down the dam.

“First, I am unsure that Duke even needs a permit from Jackson County, as the state of North Carolina and the Army Corps of Engineers are responsible for issuance of any permits for sediment removal within the state’s waterways,” Massie stated in a letter to County Manager Ken Westmoreland dated Dec. 15.

Massie also called the legality of withholding the permits “questionable.”

The county is requiring Duke to remove 70,000 cubic yards of sediment from the river before tearing down the dam but is refusing to issue the permits to do the work.

The county says it does not want to grant the permits until all appeals regarding the dam’s demolition are resolved.

The county wants to save the dam, and Duke wants to tear it down.

Duke says the county’s withholding of the permits is simply a move to delay demolition of the dam.

Duke Energy, which sued Jackson County two weeks ago for failing to issue county permits to tear down the Dillsboro dam, says it may not even need the contested permits.

But Jackson County Manager Ken Westmoreland and County Planner Linda Cable are adamant that Duke indeed needs the county permits.

Even though Duke doesn’t believe it needs the county permits it has applied for them anyway and doesn’t plan to go forward without them.

Duke is seeking permits to dredge the sediment out of the Tuckasegee River that has backlogged behind the Dillsboro dam. The state is requiring Duke to remove 70,000 cubic yards of sediment before tearing down the dam to prevent the sediment from rushing downstream and causing environmental problems.

Cable said Duke needs a Land Development Compliance Permit and the Floodplain Development Permit, but the county thus far has refused to grant them until the county’s legal appeals over tearing down the dam are resolved.

Duke believes the county is simply attempting to delay the demolition of the dam because the county wants to save it. Duke has obtained a state permit to dredge the river, raising the question of whether a county permit is also required.

“While the state permit and the local permits are not identical, we question whether such local permits are needed and have not received any explanation for the basis of the county’s withholding them,” said Duke Business Relations Manager Fred Alexander.

County Manger Ken Westmoreland admitted that it is “questionable” whether Duke needs the county Floodplain Permit but said the Land Development Compliance Permit is definitely required.

An effort to end a six-year-long dispute between Jackson County and Duke Energy failed in a 3-2 vote Tuesday night (Jan. 20), as the county commissioners decided to move forward with the case to save the Dillsboro dam.

County Commissioner Tom Massie made the motion to end the legal fight against Duke and allow the utility to dredge the river and move forward with tearing down the dam.

Massie has been the lone commissioner in favor of ending the fight against Duke, saying it is a waste of time and money for the county to continue, but he was joined in that sentiment Tuesday by Commissioner William Shelton.

By continuing to fight the matter, Jackson County is “squandering” taxpayer money on an “un-winnable case,” Massie said, adding that some $200,000 has been spent by the county so far on legal fees and technical assistance in the case.

County Commission Chairman Brian McMahan voted against dropping the case because he still thinks it is “winnable.”

Commissioner Mark Jones said the county might as well continue to fight the case because it has already invested so much money and it doesn’t look like much more will have to be spent to see it through.

“I am for the preservation of the Dillsboro dam,” said Jones.

Commissioner Joe Cowan also voted against stopping the fight.

Shelton, even though he voted to end the case, also favors preserving the dam, but the thinks it is a lost cause because Duke has so much more money and resources to fight the case.

“I agree with the fight in principle,” Shelton said.

Three issues

There are basically three different tracks the county is pursuing to stop demolition fo the Dillsboro Dam and to exact higher compensation out of Duke for its host of dams straddling Jackson County rivers.

One track is refusing to issue certain permits that the county says are necessary to tear down the dam. The county says it can’t issue the permits until the other matters are resolved, but Duke thinks the county is simply trying to delay the razing of the dam.

Another track involves an appeal of the state water quality permit needed to tear down the dam. According to the county, the permit is flawed for a host of reasons, from improper public notice to the lack of a proper environmental review.

The county’s challenge of that permit is now awaiting a decision from an administrative law judge.

The final track deals with a federal permit issued by the Federal Energy Regulatory Commission. The county says that permit is invalid because it was granted based on the invalid state water quality permit. The county also claims that FERC has not required Duke to provide adequate compensation to the region and overlooked environmental issues related to Duke’s dams.

That case is now pending before the U.S. Court of Appeals in Washington.

Through the years, Jackson County has been ruled against in several decisions, and Massie doesn’t think things will change.

“I am against a federal court challenge,” he stated.

Massie added that the county’s arguments against Duke are merely technicalities.

For example, another reason the county says Duke’s state water quality permit is invalid is that the permit states that no public money will be used to pay for the demolition of the dam. In fact, $400,000 of state money has been earmarked for the demolition of the dam.

The permits the county refuses to give Duke deal with dredging sediment behind the dam. The county says the silt must be dredged to prevent it from rushing downstream and causing environmental problems when the dam is removed.

Duke says it may not even need the county permits because it already has a state permit. But Duke has said it will not move forward without the county permits.

Massie sees no reason why the county should withhold the permits for Duke to dredge, saying dredging the river “benefits all.”

There are several reasons why some want to save the Dillsboro dam. The dam is seen by some as a water feature that draws tourists, while others think it has historical significance. The dam could also be used to generate hydroelectricity.

Re-licensing

When a utility such as Duke re-licenses it must give back to the area it has profited from.

Duke has profited from using the Tuckaseegee River to generate electricity, and therefore should make some payment to Jackson County when it comes time to re-license its dams.

Duke has proposed that it can pay back Jackson County by tearing down the dam, which will open up the river. Whitewater enthusiasts, such as the American Whitewater organization, have favored this.

Shelton said rather than Duke giving something back that benefits the entire county, it is simply pleasing special interests.

Instead of tearing down the dam (which Duke is no longer using to generate power), Duke could give back to the county by providing slope stability and conservation easements, Shelton said.

What Duke is proposing doing for Jackson County “pales in comparison” to what it and other utilities have done in other areas in re-licensing agreements, Shelton said.

Duke may be refusing to give into the county because it doesn’t want to set a precedent of giving more than it wants to, Shelton said.

Also Duke has proposed to give Jackson County $350,000 over the term of the re-licensing — 40 years. Massie and Shelton agree that $350,000 over 40 years does not come close to compensating Jackson County for what Duke has made off the Dillsboro dam’s hydroelectricity.

Shelton said Duke has not acted in good faith and said it is giving “very little back.”

“Our area deserves to be compensated for our resource,” he said.

Shelton said another option is taking over ownership of the dam through condemnation.

By giving into Duke, Shelton said he is waving his white flag of surrender but at the same time the flag says, “Shame on Duke.”

It appears a piece of property in Nantahala had something to do with Macon County pulling out of a fight against Duke Energy over the utility’s hydroelectric dams.

Macon County wants to renew a lease on the land — which is owned by Duke but used by the county for a recreation complex — but the fight over Duke re-licensing its dams was putting the two at odds in lease negotiations.

County Commissioner Bob Simpson said it is possible that Duke may have refused to lease the land if Macon County didn’t back down.

Now that the county has withdrawn from the fight, Duke may be “more amenable” to leasing the land, Macon County Commissioner Jim Davis said.

“We prefer to work in partnership with Duke rather than be in an adversarial role,” Davis said.

Macon County had joined forces with Jackson County and the town of Franklin several years ago in challenging Duke’s quest for new federal permits for a host of profitable hydroelectric dams. Duke is required to cough up environmental and recreational benefits in exchange for operating the dams, but many felt the region was getting shortchanged by Duke.

In the suit, Macon County was attempting to get “a lot of money” from Duke in return for the company using local rivers to generate electricity, according to Davis. Some think Macon County should have remained in the fight to get more money out of Duke.

It appears the land lease did, in fact, have something to do with the county withdrawing from the fight. According to the minutes from the Oct. 13 commissioners meeting, County Manager Jack Horton alluded that it may be best to withdraw from the fight since the county was negotiating renewing the lease.

The minutes state: “The manager advised the board they should consider if it is in the best interest of the county to continue with the intervention or withdraw. He added in the meantime this issue is putting the county at odds with the power company when it comes to negotiating property and extending leases for recreation purposes, i.e., Nantahala Recreation Park. The manager recommended the board study this situation before the Nov. 10 meeting.”

Horton could not be reached for comment as he was out of the office last week and Monday (Jan. 5).

Davis said Duke did not promise the county a good deal on a lease in return for withdrawing from the fight. Nor did Duke threaten to deny a lease if the county remained at odds.

“There was no quid pro quo on that issue,” said Davis.

For more than 20 years Duke has leased the property to the county, but the current lease is expired. The county continues to use the property anyway.

Duke and the county are in the process of negotiating a lease renewal.

Simpson said the county is considering building a gymnasium on the site but first wants a long-term lease in place to ensure the land will be available.

“We can’t do anything without a long-term lease,” Simpson said.

Duke Business Relations Manager Fred Alexander of Franklin said with Macon County withdrawn from the lawsuit it makes negotiating a lot easier.

In a statement about Macon County withdrawing from the fight Alexander said, “We certainly believe Macon made a good decision to get out of re-licensing at this stage.”

However, Alexander said he has “no doubt” that a lease agreement would still be worked out if the county were still in the fight.

Alexander added that the county and Duke are currently working on a “revised draft” of the lease agreement.

Davis said the county also dropped out of the suit because it didn’t look likely that it would win.

Alexander agreed that the Federal Energy Regulatory Commission turned down “every single request” Macon County made.

Is compensation due Macon County?

Some, like Franklin Town Alderman Verlin Curtis, think Macon County should be compensated in return for Duke utilizing the county’s waterways to generate millions of dollars worth of electricity.

Duke realizes “great profits” off using Macon County’s waterways and should pay the county back for their use, Curtis said.

If the county would have stayed in the lawsuit, it could have gotten Lake Emory dredged at Duke’s expense as well as received bank restoration along the Little Tennessee River, Curtis said.

Now Macon County “stands to get nothing,” said Curtis.

“Look at what Duke has done for the area — nothing,” said Curtis. “Look what they’ve taken.”

Alexander said Duke does not owe Macon County anything. Those who feel Duke is indebted to Macon County for using the waterways are “completely misinformed over the nature of re-licensing,” Alexander said.

He said the water Duke uses in Macon County is owned by the state and that residents have benefited from Duke providing “lower cost electricity.”

Some have been misinformed into believing that when a utility is re-licensed that it means there is a “pot of gold” available for the taking. He said this belief could have come from other utilities giving away large sums of money when they re-licensed.

For example, Progress Energy ponies up $325,000 a year for a single dam on the Pigeon River in Haywood County, with the money managed by the Pigeon River Trust Fund. The dam there isn’t nearly the size of the one at Nantahala Lake in Macon County.

Also, Alcoa, a Tennessee power company, agreed to provide an environmental trust fund of $125,000 annually as mitigation for four dams — Cheoah and Santeetlah lakes in North Carolina and two lakes in Tennessee. Like the Pigeon River Fund, Alcoa’s payments are doled out by a board comprised of community members. The fund is in addition to a 5,000-acre conservation easement.

But Alexander said Duke did not want to hand out cash for a “small group” to spend as it wanted years later, but would rather go ahead and fix certain issues.

Duke has proposed a host of small perks for Macon County, like adding more campsites, lighting, parking, a toilet and a handicap-accessible pier at Nantahala Lake. Also on the list are a wildlife-viewing platform and boat launches. The biggest ticket item, however, is $40,000 for water and soil conservation, but it can only be spent on “Duke approved initiatives.”

Macon County didn’t get everything it wanted. The county had asked for $700,000 upfront, then an annual payment based on how much electricity Duke generated off its hydro operations within the county. Macon also sought payments of $150,000 annually for sediment and erosion control initiatives — rather than a single payment of $40,000 as Duke has proposed.

Jackson County, Franklin continue the fight

Jackson County and Franklin are continuing in the fight against Duke’ re-licensing despite the fact that rulings have consistently been in favor of Duke.

Currently Jackson County and Franklin are awaiting the rescheduling of an administrative hearing in the case. That hearing will take place in Jackson County District Court.

Some, like Jackson County Commissioner Tom Massie, advocate Jackson County throw in the towel and stop spending money on legal fees. Jackson County is fighting Duke to prevent demolition of the Dillsboro dam and also hopes to get monetary payments from Duke.