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County seeks summary judgment to block Duke water quality permit
By Lynn Hotaling
In an effort to overturn a decision by state environmental officials that cleared the way for removal of the Dillsboro Dam, Jackson County has asked an administrative judge to cancel a water quality certification issued last year to Duke Energy.
The motion for summary judgment was filed Sept. 25 by Paul Nolan of Arlington, Va., the energy attorney who represents county officials in their ongoing battle with the power company over new licenses for its five hydroelectric generating plants on the East and West forks of the Tuckaseigee River.
A sixth power plant, in Dillsboro, is at the heart of the controversy.
As mitigation for its use of public waterways to generate electricity, Duke in 2002 proposed the removal of the Dillsboro Dam, and dam removal is the linchpin of a 2003 Stakeholders Agreement signed by Duke and other interested parties.
Though Jackson County participated in the lengthy process that led to that agreement, officials did not sign the agreement, saying they opposed the removal of the dam and that the settlement did not adequately compensate the county for the use of the public resource – the Tuckaseigee River.
The filing for summary judgment, which asks a state administrative judge to rule in Jackson County’s favor based solely on documents submitted, came just two days after a discussion at a county commissioners’ meeting during which Commissioner Tom Massie questioned the wisdom of continuing to spend taxpayers’ money in an attempt to block the power company’s new licenses.
County finance office records show that as of Sept. 23, 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.
The Sept. 23 discussion was triggered by a Federal Energy Regulatory Commission ruling that denied Jackson County’s request for a stay of approvals with regard to removing the Dillsboro Dam.
In response to Massie’s objections to continuing the legal fight, Commissioners Brian McMahan and William Shelton indicated they wanted to pursue the matter at least until a scheduled Oct. 27 administrative hearing by Judge Selina Brooks with regard to Jackson County’s appeal of the state water quality certification issued by the N.C. Department of Environment and Natural Resources’ Division of Water Quality in November 2007.
During a Tuesday (Oct. 7) telephone interview, Nolan outlined the county’s arguments in the summary judgment petition. He alleges a failure by NCDENR’S Division of Water Quality to adequately publish notices as required by state law; he takes issue with the fact that the 2005 water quality certification issued to Duke was for the “surrender of the license” at Dillsboro while the 2007 certification is for the physical removal of the Dillsboro Dam and powerhouse; he maintains that the DWQ is not acting in accordance with the N.C. State Environmental Protection Act of 1971 that governs the expenditure of public funds; and he contends that DENR allowed “impermissible segmentation” with regard to environmental review.
On the subject of public notification, Nolan argues that proper notices were not published in advance of the issuance of the 2005 certification and that required legal notices published with regard to the 2007 certification application and subsequent public hearing were inadequate, because they were not published by The Sylva Herald, which the summary judgment petition describes as “Jackson County Government’s designated newspaper for publication of official county notices.” Those notices were published in The Highlander (Highlands), The Cherokee Scout (Murphy), and the Smoky Mountain Times (Bryson City) and may have been included in The Western Carolinian, the student newspaper of Western Carolina University. Nolan contends that even if such notices were published in the campus newspaper, it is not a “newspaper of general circulation,” and therefore would not meet state requirements for publication.
A news story announcing the Sept. 25, 2007, public hearing did appear on the front page of the Sept. 20, 2007, edition of The Sylva Herald.
Nolan’s contention that the 2005 and 2007 water quality certifications were for different things – 2005 for license surrender and 2007 for dam removal – is important, he said, because it means that FERC officials had the wrong approval in place when they made their initial ruling to allow dam removal. It is for that reason that’s he’s filed suit on Jackson County’s behalf in federal appeals court, he said.
With regard to the State Environmental Protection Act, Nolan alleges that DENR officials violated it when issuing the water quality certification because they didn’t conduct reviews that are required when an activity involves the use of public funds. Nolan maintains that in the 2008-09 budget, $400,000 was approved by the N.C. Legislature for Dillsboro Dam Removal. Those funds were not listed in Duke’s application for the water quality permit, he said.
Nolan’s final argument for summary judgment, “impermissible segmentation,” is based on the county’s view that the Dillsboro project should not be ruled on separately. If dam removal is mitigation for the granting of licenses for other projects, all applications and projects on the river should be considered as a whole, he said.
Duke had not filed a response as of Tuesday, according to Fred Alexander, Duke’s business relations manager.
“In the next few weeks Duke will file a ‘rest-of-the-story’ response that will shed more light on the issues,” Alexander said. “Our efforts continue to remove Dillsboro Dam in compliance with two federal orders. Dam removal will leave Jackson County with more renewable hydro generation than leaving the dam or any other proposal.”
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 U.S. Fish and Wildlife’s and the N.C. Wildlife Resources Commission’s determinations 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 below the dam 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 received one water-quality certification from the DWQ in 2005, received a second one in November 2007 that mandates reservoir dredging.
The current summary judgment motion is part of Jackson County’s appeal of the 2007 ruling. 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 a key component 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.
Nolan said Tuesday that removal of the Dillsboro Dam and other measures Duke has proposed are not adequate mitigation, pointing out that the Dillsboro Power plant has not been operational since the floods of 2004, a fact that he says lessens its value as compensation. He said Duke is not providing either flood control or sediment control and said Duke should not be rewarded for what he termed “poor stewardship” of the Tuckaseigee River.
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