Swain County has entered the fight over Duke Energy’s proposed electrical substation that would mar views in a rural farming valley near a highly sacred Cherokee site.
Swain commissioners are considering a moratorium that would halt any electrical and telecommunications substations that require either a county building permit or soil and erosion permit. The county has scheduled a public hearing on the moratorium for Tuesday, March 9, at 1 p.m. at the county administration building.
According to County Manager Kevin King, the moratorium is intended to give the county time to develop an ordinance regulating substations.
County Chairman Glenn Jones said the moratorium was not aimed at the Duke Energy substation project directly, but it was an outgrowth of talks between the commissioners, Duke leadership and Cherokee tribal leaders over the issue.
“We’re not going to pass anything that’s just going to be detrimental, but we wanted to pass something so people can’t start scratching around without talking to us,” Jones said.
Site preparation for the substation pad began last November on a mountainside tract in the Ela community between Bryson City and Cherokee. Duke never received any county permits for the work and did not file an application with the North Carolina Utilities Commission.
Swain County commissioners learned of the extent of the substation and line upgrade projects only after members of the Eastern Band of Cherokee Indians came to a board meeting to complain. Cherokee is upset that the substation and associated transmission lines will impact the character of Kituwah, which historically served as the spiritual and political center of the Cherokee.
Jones said the commissioners plan to pass the moratorium at the special public hearing next week and have an ordinance in place within 60 days.
“Within 60 days, we’ll have some kind of ordinance in place so we can move forward,” Jones said.
King said county commissioners came away from the meeting last month in Cherokee realizing they needed their own regulations. At that meeting, Duke Energy Carolinas President Brett Carter made it clear the reason his company had consulted with Jackson County over the substation and transmission line project was that their ordinances required it.
“He made it clear that if you have a local ordinance, you’d have a seat at the table, and if you don’t have an ordinance, you don’t have a seat at the table,” King said.
Swain Commissioner David Monteith said the moratorium was a way to bring Duke to the table now and in the future.
“I think the moratorium is a way to get them to sit down and talk with us, not only now but even more so in the future,” Monteith said. “I feel that Duke owes the people of Swain County and Western North Carolina more respect than what they’ve given us ... which is nothing.”
Immediate remedy or long-term goal?
It’s not clear whether Duke’s current substation project will be directly affected by the moratorium or the ordinance the county puts in place.
King said Duke’s regional manager Fred Alexander was concerned enough to call and ask him if the moratorium would affect the substation.
“He was basically asking whether this would impeded the project, and I said he’d probably need to consult their attorneys on that,” King said.
Duke spokesman Jason Walls said it was too early to tell how the moratorium would affect the project, but the company’s attorneys would review the documents as they were made available.
“We’re engaged with the county to better understand what the moratorium would entail and until we see the actual document, we won’t know how it might affect the company’s plans,” Walls said.
David Owens –– a professor at UNC-Chapel Hill’s Institute of Government who specializes in land-use law –– believes Duke would have to make the case that they had a vested right in the project to claim exemption from the moratorium. Under vested rights claims, developers who are already underway with a project can be exempt from regulations that come along later.
“They would have to show that they’d sunk some cost in this particular location and those costs would be lost if the structure were moved to a different site,” Owens said.
Owens said the announcement of a public hearing on a moratorium by Swain commissioners sets the stage for whatever legal arguments are to come.
“Once a county sends a notice of a moratorium, that freezes the status quo,” Owens said. “The question is what is Duke’s position at that point.”
In 2006, state legislators tightened the laws governing moratoria imposed by local governments. The statute mandates that counties state the problems that necessitate a moratorium, list the development projects that could be affected, name a date for the end of the moratorium, and develop a list of actions designed to remedy the problem.
Us and them
Duke is currently in negotiations with the Eastern Band over whether to mitigate the visual impact of the substation or move the project altogether. Swain County’s actions have added pressure to the energy giant.
King said the fact that many tribal members are Swain County residents motivated the commissioners to act.
“Every tribal member that lives in Swain County votes in our election, so as far as the board is concerned there is no ‘us’ and ‘them.’ It’s all ‘us,’” King said.
Both the county and the tribe have offered Duke alternative sites for the substation. King said he offered a site in the county’s industrial park.
“That’s an area that’s visually polluted already,” King said. “We’re trying to deliver alternatives. The tribe is trying to deliver alternatives, and hopefully we can all get this resolved.”
Swain County officials have stressed, as has the tribe, that they prefer an amicable resolution to the issue rather than a legal battle.
“If coming out of this we could get an open dialogue with Duke, this can be a positive thing for Swain County in the future,” Monteith said.