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.
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.”