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AG ‘disappointed’ with tone of his staff’s Duke relicensing filing
By Lynn Hotaling
North Carolina’s attorney general sent county leaders a Sept. 13 letter that expresses “disappointment” in the tone of a brief written by his staff and filed with federal power officials as part of Duke Power’s relicensing application.
“I am disappointed in the tone of the filing,” writes Attorney General Roy Cooper. “The filing lacks the civility and professionalism that I expect from attorneys working for the state of North Carolina.”
However, the five-paragraph letter makes no mention of any change in position by the agencies represented by the brief.
A spokesman for Cooper’s office confirmed Friday that he knew of no plans to alter the substance of the filing, which was submitted to the Federal Energy Regulatory Commission in July on behalf of the N.C. Department of Natural Resources and the N.C. Wildlife Resources Commission. The brief in question represented the position of the resource agencies, he said.
“The Attorney General’s Office filed briefs on behalf of our clients (NCDENR and N.C. Wildlife) and are not aware of any plans to change those arguments,” said William McKinney of Cooper’s office.
NCDENR spokesman Don Reuters also confirmed that there has been no shift in the agency’s position and that Cooper’s letter refers only to the language of the filing and not to its content.
“The language and issues are separate,” said Reuters. “The agencies have no plans to change their position on the issues with regard to FERC relicensing.”
According to Jackson County Commissioners’ Chairman Brian McMahan, county leaders took exception to some of the wording in the brief written by members of Cooper’s staff.
“A lot of things were said that I don’t believe were true,” McMahan said Tuesday. “The brief blindly makes statements that are not 100 percent accurate.”
McMahan said that local commissioners sent a letter to Cooper protesting the document, which takes a position opposite to Jackson County’s.
“The attorney general’s office didn’t have a full grasp of the events that have transpired,” McMahan said. “The Jackson County Commissioners know more about relicensing than the Attorney General’s Office.”
Local officials objected to the language employed by Cooper’s staff to describe what Jackson County has termed a “Preferred Settlement Agreement,” which was filed with FERC as an alternative to the Cooperative Stakeholders Agreement that was signed by Duke Power and more than 30 area groups.
While Duke, American Whitewater, the U.S. Forest Service and U.S. Fish and Wildlife joined NCDENR and N.C. Wildlife in opposing the Jackson filing, the most colorful language is found in the brief prepared by the Attorney General’s Office.
“Jackson County purports 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.”
The brief goes on to point out that 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 Water Quality Division) under the Federal Power Act. All three signed the Stakeholders Agreement.
Jackson’s plan differs significantly from the Stakeholders Agreement, which has also been approved by major regional and local non-governmental groups as well as some local governments. The Jackson plan provides the Dillsboro Dam remain in place (and be given to Jackson County as a charitable donation); 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 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 cash payments to Jackson and Macon counties.
Addressing those differences in light of the use of the word “agreement,” Cooper’s staff 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,” the staff writes.
On behalf of NCDENR and N.C. Wildlife, the attorney general’s staff expresses unqualified support for the Cooperative Stakeholders Agreement 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.”
In addition to Duke and the agencies listed above, the Stakeholders Agreement has the support of the towns of Sylva and Dillsboro, the Eastern Band of Cherokee, Swain County’s Economic Development Commission and Soil and Water Authority; N.C. Division of Parks and Recreation; N.C. Wildlife Federation; Tuckaseigee Outfitters Association; Nantahala Outdoor Center; and some 15 other area, state and national organizations.
Jackson County’s proposed agreement has the support of the 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 Cashiers-area homeowners’ groups (Friends of Lake Glenville, Cullowhee Falls and 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 River – were among the initiators of Jackson County’s opposition to the Stakeholders’ Agreement, though neither endorsed the county plan.
WNCA, however, 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.
For more information on relicensing and the various filings by Jackson County as well as those who oppose the county’s plan, visit www.thesylvaherald.com and check the archives for July 14; June 2, 16 and 30; May 12 and 26; and Jan. 6 (2005); and Dec. 9, 16 and 23, 2004.
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