Duke Energy filed a lawsuit against Jackson County and county Planning Director Linda Cable on Monday (Jan. 5) for failing to issue permits necessary for the removal of the Dillsboro dam.

Duke warned the county about a month ago that if the Land Development Compliance Permit and the Floodplain Development Permit were not issued within a month that further legal action would follow. Yet the county has continued to hold up the permits.

The state is requiring Duke to remove approximately 70,000 cubic yards of sediment backlogged behind the dam before tearing it down.

Duke already has state permits in hand for the dredging, but seems to need permits from the county as well. But the county refuses to grant them until an administrative appeal over tearing down the dam is resolved. It is unclear when the appeal may be resolved.

Duke believes the county is purposely delaying tearing down the dam. The county wants to save the dam and has been involved in a lengthy battle against Duke over the issue. (see article on page 8)

The lawsuit seeks damages in “excess of $10,000 for defendants’ illegal actions.”

The removal of the dam is required by the Federal Energy Regulatory Commission, Duke notes in the lawsuit.

“Jackson County’s actions are utterly without legal foundation and taken for an improper purpose in violation of plaintiff’s constitutional rights and have and will continue to cause the plaintiff damage,” the lawsuit states.

Duke has met all requirements for the permits, and the county’s withholding of them is arbitrary and capricious, according to the lawsuit.

And the county’s refusal to grant the permits violates the due process clause of the U.S. Constitution and the equal protection and law of the land clauses of the N.C. Constitution, the lawsuit states.

Duke Business Relations Manager Fred Alexander of Franklin said Duke does not believe it needs the permits but in an effort to be non-confrontational applied for them. Duke applied for the Land Development Compliance Permit in July and the Floodplain Permit in November.

The normal practice of the county is to issue the permits within one week, the lawsuit states.

Duke received a state permit from the N.C. Department of Environment and Natural Resources in June for the sediment dredging.

County Commission Chairman Brian McMahan had no comment on the lawsuit Monday, saying he had not read it.

Jackson County is almost at the end of its rope in the fight against Duke Power, but it is important that it make this final appeal. Its citizens deserve one more attempt at getting their fair share in what has become a drawn-out battle.

The state recently gave Duke Energy the green light to tear down the Dillsboro dam, a move that Jackson County and the town of Franklin are now formally protesting.

Jackson County commissioners are contemplating drastic measures in their fight against Duke Energy to stop the Dillsboro dam from being torn down.

Jackson County commissioners are weighing whether to continue a four-year fight against Duke Energy or cut their losses and bow out.

Duke Energy has received clearance from the state to tear down the Dillsboro dam but will be forced to dredge a backlog of sediment from behind the dam first.

A plan by Duke Energy to tear down the century-old Dillsboro dam drew a crowd of opponents to a public hearing last week held by the N.C. Division of Water Quality.

Duke Energy must get a permit from the N.C. Division of Water Quality before it can tear down the Dillsboro dam.

There has been a good deal of confusion over whether the state already issued this permit or not — with Duke, the Federal Energy Regulatory Commission, Jackson County’s lawyer and even the Division of Water Quality itself under oscillating assumptions as to whether a permit is still pending or has been issued.

By Susan Leveille

Editor’s note: This letter, which contains some updates, was sent by Susan Leveille to the Maggie Salas, secretary of the Federal Energy Regulatory Commission, in 2004. She asked that we publish it as a guest column.

Dear Secretary Salas:

As a lifelong resident of Jackson County and one who has always lived within a few thousand yards of the Tuckasegee River, I would like to state some concerns with the proposals made by Duke Power as they seek to receive the exclusive license to use this river for monetary profit derived from the production of electric power.

A public hearing on whether Duke Energy should be allowed to build a new coal-fired power plant in the Shelby area will be held Tuesday, Sept. 18, in Forest City.

Duke Energy must get an air pollution permit from the state before it can build the coal plant. Under the permit, Duke must demonstrate that it can comply with state and federal limits for various pollutants and toxins, from carbon monoxide to mercury to soot particles.