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County is blocking needed permits, Duke lawyer says
By Justin Goble
A lawyer representing Duke Energy addressed county commissioners Monday night (Dec. 1) about actions she says the county has taken to hold up the company’s plans to dredge sediment above the Dillsboro Dam.
Molly McIntosh, an attorney with K&L Gates of Charlotte, spoke to county officials about Duke’s plans to dredge behind the dam. According to McIntosh, the company is ready to move forward with removing sediment, which she said has reached alarming levels.
McIntosh said Duke has applied for both a local land development compliance permit as well as a local floodplain development permit, which Duke was told had been requested by the Federal Emergency Management Agency because Duke will be dredging along the river in a floodplain.
Commissioners Tom Massie, left, and Brian McMahan listen as Duke Energy attorney Molly McIntosh discusses permits the company is seeking to dredge sediment above the Dillsboro Dam. Though dredging has been mandated by the federal government, McIntosh said the county is withholding necessary permits due to its ongoing litigation with Duke over the power company’s plans to remove the Dillsboro Dam. – Herald photo by Justin Goble
Though McIntosh said she doesn’t think either of those permits are necessary, the company has filed applications for both permits with the Jackson County Planning Office.
County officials have yet to approve those applications due to Jackson County’s ongoing litigation with Duke over the removal of the Dillsboro Dam, McIntosh said. That is keeping Duke from dredging the sediment, which has been mandated by federal energy regulators.
“The reservoir is filled to near capacity with sediment, and even if Dillsboro Dam were not scheduled to be demolished, the removal of 70,000 cubic yards of sediment from the reservoir is both desired by Jackson County and beneficial,” she said.
According to Planning Director Linda Cable, the floodplain permit is required by the county since dredging is considered a land-disturbing activity. If Duke acquires that permit, Cable said a land development compliance permit is required as well.
“You basically have to get that permit for any activity that requires another permit from the county,” she said. “That’s what the land development compliance ordinance states. They had to get the floodplain and demolition permits, so they have to get the land development permit as well. It just lets us makes sure they do it by the book and follow any regulations that are called for.”
Though Cable said getting those permits usually take only a few days, the process is being held up in this case because of the county’s ongoing litigation with Duke over the removal of the Dillsboro Dam.
“Duke applied for the land development compliance permit a little more than a month ago,” she said. “We’ve approved that on the contingency that it will be issued once the litigation with Duke is resolved. They applied for the floodplain development permit last week, but our department been advised to not issue any other permits until the administrative hearings had finished.”
Though she said Duke could empathize with the county’s “difficult position,” McIntosh said officials are wrong to withhold the permits.
“For your office to withhold issuance of the permits Duke Energy Carolinas has applied for and to which it is entitled is both unjustified and illegal,” she said. “Please provide me with a written explanation of the basis for the county’s action in directing you not to process Duke Energy Carolinas’ permit applications.”
If the county does not approve the permits by Thursday, Dec. 25 (30 days after McIntosh contacted county officials about the issue by letter), she said Duke would go to court to settle the matter.
“Duke Energy Carolinas certainly does not wish to have to take this legal action, particularly considering that Jackson County has repeatedly stated its desire for the sediment to be removed from the Dillsboro reservoir,” she said. “Duke Energy Carolinas strongly encourages you to issue the permits for which it has applied.”
As part of its ongoing effort to reverse the Federal Energy Regulatory Commission 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 that give Duke the go-ahead to dismantle the Dillsboro Dam.
Duke is seeking new licenses for its five hydroelectric generating plants on the East and West forks of the Tuckaseigee River; a sixth power plant, Dillsboro, is at the heart of the ongoing controversy.
As mitigation for its use of public waterways to generate electricity, Duke in 2002 proposed removing the Dillsboro Dam as 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 a public resource – the Tuckaseigee River.
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