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County loses again in ongoing battle over Dillsboro Dam
By Lynn Hotaling
Another ruling by federal power officials against Jackson County in its longstanding dispute over the future of the Dillsboro Dam prompted more discussion of the ongoing legal battle during Tuesday night’s commissioners’ meeting.
Commissioner Tom Massie, who asked that the matter be added to the Sept. 23 agenda, said he’d like an update on the Federal Energy Regulatory Commission’s Sept. 18 denial of the county’s request for a stay of approvals with regard to Dillsboro Dam removal. Massie also questioned the wisdom of continuing the protracted legal battle.
“I read in the paper that we’d lost the last proposal,” Massie said. “What’s the next step? When are we going to say ‘we’ve had enough’ and cry ‘uncle?’ ”
County Manager Ken Westmoreland said he’d spoken briefly with Paul Nolan, the Alexandria, Va.-based energy lawyer retained by Jackson County to oppose Duke Energy’s relicensing applications that hinge on the removal of the Dillsboro Dam.
“FERC did refuse to issue the stay, but that’s immaterial,” Westmoreland said, adding that an administrative hearing is scheduled in October with regard to the county’s appeal of a water quality certification issued to Duke by the N.C. Department of Environment and Natural Resources. According to Nolan, FERC officials made their initial ruling to allow Dillsboro Dam removal to proceed based on an “improperly issued” 401 water quality certification, Westmoreland said.
That answer didn’t satisfy Massie.
“I appreciate that update, but with all due respect to Mr. Nolan and other lawyers in the room, (all the rulings are immaterial),” Massie said. “As long as they’re arguing, they’re getting paid.
“It continues to appear to me the deck is stacked against us,” Massie said. “You know where I stand.”
Massie’s last comment refers to his vote last year to end the legal battle and stop spending taxpayer money on a fight he says he doesn’t think the county can win.
“Every time (the lawyers) make a phone call, we write a check,” Massie said. “We need to fish or cut bait, folks.”
However, Commissioners Brian McMahan and William Shelton said they’re not ready to throw in the towel.
“It would be premature to take action before we hear the ruling in October,” McMahan said, adding that “our options as we go forward seem to be limited.”
Shelton’s comments echoed McMahan’s.
“I think we’ve made it clear there are limits, but I agree with Chairman McMahan that we wait until October definitely,” Shelton said.
Those comments prompted a sarcastic response from Massie.
“As our options get fewer and fewer, we can always ask our attorney and he can tell us about options we haven’t tried yet,” Massie said.
County finance office records show to date, the county has paid Nolan $117,658.77 for his services; a consultant hired to assist Nolan, John Boaze of Whittier, has received $62,703.81.
According to FERC spokesman Celeste Miller, last week’s ruling allows Duke Energy to move forward with removal of the dam without delay.
FERC granted Duke’s request to surrender its license and remove the Dillsboro Dam and Powerhouse, consistent with a settlement among Duke, federal and state resource agencies and nongovernmental associations in July 2007. Jackson County filed a motion in August requesting a stay of all approvals and activities associated with the removal of the project, pending the completion of judicial and administrative proceedings.
In considering Jackson County’s motion, the Commission said it generally looks at factors such as “whether the moving party will suffer irreparable injury without a stay, whether issuance of a stay would substantially harm other parties, and where the public interest lies.” The Sept. 18 decision noted that removal of the dam and powerhouse will not result in any significant, adverse impacts and that removing the dam is not irreparable, Miller said.
FERC also said a stay would delay the significant environmental benefits associated with removal of the dam and powerhouse.
Before demolition can occur, Duke must develop a removal schedule, complete studies and remove approximately 70,000 cubic yards of sediment from the reservoir. Duke also must comply with conditions of the 2007 water quality certification and fish and wildlife terms and conditions.
“Duke Energy is pleased with FERC’s decision,” said Marilyn Lineberger of Duke’s Corporate Communications office. “We will continue with planned activities for Dillsboro Dam removal under the relicensing agreement and in consultation with state and federal resource agencies. Mussel relocation will continue, and sand dredging will commence as soon as the county permit is received.”
According to Lineberger, Duke expects dam removal to begin in January 2010, with estimated completion in April 2010.
“Removal of the dam will open up 10 miles of free-flowing river, which is good for aquatic species and beneficial to recreational users of the river,” Lineberger said. “This action preserves more renewable hydroelectric power in Jackson County than any other proposed option.
In its bid to secure new licenses for its local electric generating plants, Duke has compiled an unbroken string of favorable rulings from federal regulators.
FERC officials July 15 gave a green light to Duke’s sediment management plan and two days later OK’d the power company’s proposal to relocate downstream populations of endangered Appalachian elktoe mussels during dam removal.
To limit downstream sedimentation as the dam is removed, Duke has agreed to remove the dam in stages, pausing demolition after the initial notch as well as after each 3- to 4-foot section of the dam is removed.
The power company’s mussel relocation plan is based on determinations by U.S. Fish and Wildlife and the N.C. Wildlife Resources Commission of the best way to prevent negative impact to Appalachian elktoe populations downstream of the Dillsboro Dam.
In a nutshell, Duke on the recommendation of USFWS and the NCWRC will locate collected mussels from the downstream reach to the first shoal area upstream of the mouth of Savannah Creek.
A July 2006 FERC environmental assessment favored a Settlement Agreement signed by the power company and some 30 stakeholders rather than an alternate proposal filed by Jackson County and several other intervenors. It was followed a year later, in July 2007, by a FERC directive ordering Duke to proceed with dam removal.
Jackson County’s request for a re-hearing on that order was denied in April.
Duke, which had already received one water-quality certification from the NCDWQ, received a second one in November 2007 that mandates reservoir dredging.
Jackson County is appealing that state ruling, and a hearing in Administrative Court is scheduled for the week of Oct. 27. Duke initiated mediation with regard to the water-quality permit, and those talks, held in June, apparently did not result in a settlement of the matter.
As part of its ongoing effort to reverse the FERC ruling that calls for the removal of the Dillsboro Dam, Jackson County, along with the town of Franklin and Friends of Lake Glenville, filed a July request in the U.S. Court of Appeals for the District of Columbia Circuit for review of FERC orders issued in July 2007 and April 2008.
Removal of the Dillsboro Dam is the linchpin of the 2003 legally binding Settlement Agreement signed by state and federal natural resources agencies, the towns of Dillsboro and Sylva, the Eastern Band of Cherokee Indians, public recreation and environmental interest groups, and Duke. All parties to the contract, including those given regulatory authority under the Federal Power Act, agreed that the dam’s removal would count as environmental mitigation to maximize power generation at Duke’s much larger and more efficient hydroelectric stations – Thorpe (powered by Lake Glenville), Bear Creek, Tanassee Creek and Cedar Cliff in Jackson County; and Nantahala in Macon County.
Jackson County did not sign the Stakeholders Agreement, which would give the county $350,000 in cash as well as guarantee lake levels, add improvements such as rest rooms, docks and wildlife viewing platforms at Duke’s lakes, and add boat and canoe launch areas at several locations along the Tuckaseigee River.
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