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County’s relicensing plan draws widespread opposition
By Lynn Hotaling
Less than three weeks after Jackson County leaders filed their “preferred settlement agreement” with federal power officials, the plan is under fire from several major players in the relicensing process.
Heading the list is Duke Power, the energy company that operates six hydroelectric projects in Jackson County. Duke is seeking new licenses for all its local plants. As part of those applications, Duke and a large team of “stakeholders” (those with an interest in the power company’s lakes and rivers) met for three years and hammered out the Tuckaseigee and Nantahala cooperative stakeholders agreements. Signed in 2003 by more than 30 groups (local governments, federal and state natural resource agencies, and national, state and local organizations) and Duke Power, those agreements were filed with the Federal Energy Regulatory Commission in January 2003.
American Whitewater, U.S. Fish and Wildlife, U.S. Forest Service, N.C. Department of Environment and Natural Resources and N.C. Wildlife Resources Commission, as well as Duke, have all filed documents asking FERC regulators to reject Jackson County’s plan in favor of what they contend is the broader-based Tuckaseigee Cooperative Stakeholders Agreement.
The most colorful language is found in the opinion filed by the North Carolina Attorney General’s Office on behalf of NCDENR and N.C. Wildlife.
“Jackson County purports to have submitted to the Commission a ‘Preferred Settlement Agreement.’ This moniker is the height of Orwellian doublespeak, for this filing is neither preferred, nor a settlement, nor even an agreement.”
According to the attorney general, the Jackson filing does not have the support of any of the entities with legal authority (U.S. Fish and Wildlife, U.S. Forest Service, NCDENR’s Division of Water Quality) under the Federal Power Act because those agencies all signed the TCSA, which has also been approved by major regional and local non-governmental groups as well as local governments.
Jackson County’s plan differs significantly from the TCSA in that it provides the Dillsboro Dam remain in place (and be given to Jackson County as a charitable contribution); it delays (for at least 10 years) recreational kayaking water releases in the Tuckaseigee’s bypassed West Fork and a portage trail that would give the public access to High Falls and boaters access below the falls; it would move a planned public swimming area at Lake Glenville near the dam to Andrews Park; it would allow lakeshore property owners to obtain leases for the power company’s 10-vertical-foot buffer zone; it would require Duke to conduct dredging operations at all its reservoirs; and it would require large annual payments to Jackson and Macon counties.
Addressing those differences in light of the use of the word “agreement,” the attorney general writes that the Jackson plan sees local interests conspiring to urge federal regulators to mandate “substantial, costly, environmentally damaging and resource-diminishing actions” by Duke. The example given is that Jackson and the other parties to the plan have “agreed” that Duke must make payments of more than $1.5 million to Jackson, Macon and Swain counties and give Jackson County the power company’s Dillsboro project.
“Considering the confiscatory nature of such a transfer, such an ‘agreement’ is more akin to a criminal conspiracy.”
On behalf of NCDENR and N.C. Wildlife, the attorney general expresses unqualified support for the TCSA as the preferred relicensing outcome.
“The state strongly opposes the (Jackson filing) and supports the settlement agreement executed by (Duke); federal, state, local and tribal governments; and other major stakeholders.”
While not as forceful, the brief filed by U.S. Fish and Wildlife also opposes Jackson County’s plan. Among the reasons cited in its filing are Fish and Wildlife’s support for the removal of the Dillsboro Dam and its objection to leases for lakeshore property owners.
“(Fish and Wildlife) believes that significant consensus was reached on many items of issue, and that the TCSA reached a fair balance for (FERC) to issue new licenses and to order decommissioning and removal for Dillsboro Dam,” writes field supervisor Brian Cole. “We do not agree that the latest offer of settlement provided by those members of the local community provides a similar level of benefits to fish and wildlife resources.”
Brief comments from Acting Regional Forester Gary Pierson confirmed Forest Service opposition to the Jackson plan, expressing concern that it would “negate components of the existing stakeholder agreements for the Duke Power-Nantahala Area that were of vital importance to various parties.”
In conclusion, Pierson writes that the Forest Service views the existing cooperative stakeholder agreements as “reasonable and balanced solutions to the many and complex issues identified and negotiated in an open-minded, progressive fashion over several years and recommends that these important agreements be preserved.”
Kevin Colburn, national stewardship director for American Whitewater, an advocacy group that seeks to protect public stream access for recreational use, objects based on what he calls the “de facto privatization” of the Jackson plan, which eliminates planned recreational use of the West Fork and permits leases of the lakeshore buffer zone by adjacent land owners as well as to the “massive payouts” that would go directly to Jackson and other counties.
American Whitewater does not want to see West Fork recreational releases delayed or denied and dismisses Jackson County claims that boaters in the area would be in a hazardous environment that would stretch the capacity of local rescue squads.
“Search and rescue concerns on the West Fork of the Tuckaseigee are not unique to the region nor do they in any way justify keeping the river dry,” Colburn writes. “The very notion that a river should remain dewatered expressly to eliminate public recreation in order to protect private landowners from the very unlikely event of emergency services occurring on their lands is more than a stretch – it is an attempted abuse of the FERC process targeted at privatizing a public resource.
“What (the Jackson plan) seems to be asking for is a de facto ban on floating all rivers that flow through private lands – which is expressly in opposition to case law, state regulations, and the state agencies,” Colburn writes.
Colburn also objects to the Jackson plan’s elimination of a trail to High Falls, which would be within Duke’s project boundary.
“The access trail will provide hiking access to the beautiful High Falls as well as paddling access to the river below,” he writes.
In summary, Colburn reiterates American Whitewater’s concern over what he views as the public’s loss under Jackson County leaders’ plan.
“They ask that a whitewater gem be kept dry and inaccessible rather than opened to the public. They ask that lakeshore property be controlled by them rather than by FERC – for private rather than public use,” he writes.
Duke’s filing is the largest of the five, and the power company objects to the Jackson plan for a number of reasons.
Duke estimates that its costs in implementing all the measures specified in the Jackson plan over the 40-year terms the plan specifies would exceed $709 million, according to the document prepared by John Whittaker. As a result of these huge additional costs, each retail customer of Duke would end up paying more than $10,300 more for electricity than they otherwise would during this 40-year period, the document states.
“This immense cost of $709 million represents more than $7 million per megawatt of installed capacity (the combined total installed capacity of the seven Duke projects – six in Jackson County plus the largest, Nantahala, in Macon County – is approximately 100 MW. Further, and more importantly, if (FERC) acquiesced to the demands of the (Jackson plan) and required Duke to implement all of the measures in it, Duke – assuming these costs did not drive it to surrender all of its licenses and remove West Fork (Glenville) and the other projects – would have to raise its retail electric rates in its Nantahala service area significantly to cover these additional costs,” according to the Duke filing.
Like the opinion filed by the attorney general’s office, Duke contends that the Jackson plan is not a “settlement,” but rather a means to request cash, free land and special benefits.
“A ‘settlement’ agreement presupposes settlement of issues between key parties with conflicting positions,” states the Duke filing. “The (Jackson plan) is clearly not that, since it excludes Duke, excludes all state and federal resource agencies, excludes the Eastern Band of the Cherokee Indians, and excludes other key parties. (The Jackson plan) is merely a means for all those wanting cash, free land, and other special benefits from Duke to pool their demands.”
According to Duke, this is in contrast to the TCSA, where Duke, the agencies, and the EBCI, together with local governments (Sylva and Dillsboro among them) and associations and other non-governmental organizations, “settled their competing resource interests and crafted mutually-acceptable, balanced settlement agreements that are in the public interest.”
Duke also questioned the Jackson plan’s stated aim of “green power” with regard to keeping the Dillsboro Dam in place.
“If (Jackson County leaders’) concern is with the loss of hydroelectric generating capacity, it appears to Duke that their approach to ‘saving’ the 0.225 MW of installed capacity at Dillsboro by having Duke incur over $709 million in additional costs is more than a bit odd, given that imposition of such costs on Duke might very well force Duke to surrender its licenses for all seven projects and remove them, thus eliminating 100 MW of existing installed capacity,” the document states.
Duke also takes issue with the Jackson plan’s proposal that the Dillsboro project be turned over to the county.
“Probably the most bizarre demand in the (Jackson plan) is the request that Duke be forced to transfer Dillsboro at no cost to Jackson County or its designee as a ‘charitable contribution,’ states Duke’s filing document. “With all due respect to the (Jackson plan) parties and their counsel, forced transfers of licenses, for ‘charitable’ reasons or otherwise, are not permitted by the Federal Power Act.”
Duke also objects to the provisions of the Jackson plan that require periodic dredging of all reservoirs.
“Almost as bizarre as the (Jackson plan’s) proposal to require Duke to make a ‘charitable contribution’ of Dillsboro to Jackson County is (the plan’s) proposal that Duke be required to undertake a massive, 40-year-long sediment-dredging operation at nine impoundments,” the document states. According to Duke, the cost of the Jackson plan’s dredging proposal would exceed $651 million.
Other parties to the “preferred settlement agreement” (Jackson plan) are Macon County Commissioners, the towns of Webster and Franklin, several local agencies (Jackson County Soil and Water, Jackson County Greenways and Jackson County Parks and Recreation), three southern Jackson County homeowners’ groups (Friends of Lake Glenville, Cullowhee Falls, Cullowhee Forest), the Glenville Community Development Club and T.J. Walker of the Dillsboro Inn.
Two area environmental groups – Western North Carolina Alliance and the Watershed Association of the Tuckaseigee – were among the initiators of Jackson County’s opposition to the Settlement Agreement though neither endorsed the county’s plan.
WNCA, however, has filed a separate document with FERC that expresses its support for the Jackson plan with the exception of its provisions for shoreline management and public access.
Bill Lyons, WNCA’s relicensing associate, said that with regard to preservation and restoration of lakeshore buffer zones and public access to the lakes, Jackson County commissioners appear to be “in the hands of developers” and only acting for the “benefit of people in the Cashiers area.”
Otherwise, Lyons said, the Jackson plan offers more money to mitigate erosion problems that are directly tied to the effects of Duke’s projects.
“WNCA wanted very much to be able to sign the (Jackson plan) but was unable to negotiate simpler, clearer, more certain language governing the protections of the natural buffer and the public’s right of use,” Lyons wrote. “WNCA views the existing language of the (Jackson plan) with respect to buffer zones, leases, the public’s right of use and the restoration and protection of the vegetated cover of the buffer zone to be an attempt to privatize the buffer, and therefore WNCA cannot and will not endorse such a proposal.”
When reached Tuesday, Jackson County Manager Ken Westmoreland said that while the Jackson plan allows leases for lakeshore property owners, it also preserves the public’s right to access the buffer strip, except with regard to structures like docks and boardwalks, which are private property. When asked if that meant someone walking around the lake could cross a boardwalk if he came to it, Westmoreland replied that was a legal question he was not prepared to answer.
With regard to the county’s proposal to delay recreational flows in the West Fork, Westmoreland said boaters could not navigate that section of the river without being on private property. According to Westmoreland, when flows of 250 cubic feet per second travel down the West Fork, the water gets outside the project boundary and “actually goes on private property.” The area is also overgrown, and fallen trees and large boulders make it unsafe for boaters, he said.
As to the trail to High Falls, the county’s main objection is that it’s designated a portage trail, Westmoreland said, adding that the High Falls area is extremely dangerous and has a history of serious injuries.
With regard to the TCSA’s proposed swimming area near the Lake Glenville Dam, Westmoreland said the county would prefer that the power company provide a swimming area at Andrews Park.
Once such an area is designated and built, it will be up to the county to maintain and supervise it, Westmoreland said. That being the case, county officials would rather see the swimming area at county-operated Andrews Park, he said.
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