Dillsboro Dam, located on the Tuckaseegee River, is the cornerstone of a comprehensive Federal Energy Regulatory Commission relicensing process that includes whitewater releases on the Cascades and Upper Nantahala (Class IV+ - III) as well as scheduled boating flows on the West Fork of the Tuckaseegee (Class IV). These releases have been delayed due to the ongoing dispute over the removal of Dillsboro Dam.
The Federal Energy Regulatory Commission recently approved Duke's plan to dredge some 70,000 cubic yards of sediment from behind the impoundment as well as relocate populations of endangered Appalachian Elktoe Mussel during dam removal.
American Whitewater is actively engaged in representing environmental and recreational interests and is a party to the 2003 Settlement Agreement.
The following article ran in the July 24 edition of the Sylva Herald:
FERC OKs Duke proposals
By Lynn Hotaling
In its bid to secure new licenses for its local electric generating plants, Duke Energy continues to pile up favorable rulings from federal regulators.
On the heels of last week’s news that county officials have taken their battle with the power company to federal court, the Federal Energy Regulatory Commission has issued more approvals connected with Duke’s plans to remove the Dillsboro Dam.
The rulings are encouraging for Duke, according to Nantahala Area Business Relations Manager Fred Alexander.
“Each of these new approvals brings us a step closer to removing Dillsboro Dam,” Alexander said. “We look forward to getting on with the work.”
Jackson County Commissioners’ Chairman Brian McMahan said Tuesday that while he hadn’t heard of the most recent FERC rulings until contacted by The Herald, those approvals would have no impact on the county’s ongoing effort to derail Duke’s plan to take out the 95-year-old dam.
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.
Duke crafted the sediment management plan with input from the U.S. Fish and Wildlife Service, the N.C. Department of Environment and Natural Resources, the N.C. Wildlife Resource Commission, the N.C. Division of Water Resources and the N.C. Division of Water Quality. Its purpose is to limit the amount of sediment released into the Tuckaseigee River as the dam is removed.
Prior to removing the dam, Duke plans to dredge some 70,000 cubic yards of sediment from the impoundment.
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 will also secure exposed river bank areas with geotextiles, and, if deemed necessary, a downstream silt curtain.
Duke has also agreed to monitor turbidity and solids downstream and consult with Fish and Willife, NCWRC, NCDWR and NCDWQ to determine modifications if levels exceed allowable limits at any time. The power company will continue to monitor sediment both upstream and downstream quarterly for the first year after dam removal and twice a year thereafter.
The FERC order concludes with the opinion that Duke’s “Sediment Management Plan should minimize the potential effects of released sediments from the project’s demolition into the Tuckaseigee River.”
Duke’s proposed dredging operation that will remove silt, which is also regulated by FERC, is approved as part of the commission’s July 15 order.
The power company’s mussel relocation plan is based on determinations by USFWS and the NCWRC 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.
The plan includes details of how the mussels are to be collected and transported as well as detailed discussion of monitoring the mussel populations both during and after relocation, and Duke has agreed to consult with USFWS and the NCWRC throughout the dam removal process.
Last week’s rulings continue an unbroken string of favorable rulings for Duke. 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 that mandated reservoir dredging in November 2007.
Jackson County is appealing that state ruling, and a hearing in Administrative Court is scheduled for October. Duke initiated mediation with regard to the water-quality permit, and such talks were held in June. According to McMahan, Duke abruptly ended those talks without an explanation. Duke’s Alexander declined to address McMahan’s statement, saying that all aspects of mediation are confidential and that he is not allowed to comment.
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, last month filed a 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.
According to Jackson County Manager Ken Westmoreland, the federal filing is part of the county’s appeal of an N.C. Department of Environment and Natural Resources Division of Water Quality 401 permit issued last November.
“FERC could allow the surrender of the Dillsboro dam only after a state 401 permit had been issued,” Westmoreland wrote in an e-mail two weeks ago. “DWQ issued the 401 permit, which was subsequently contested by the county. Duke, however, notified FERC that a 401 had been issued on the project, but evidently failed to notify them that the permit was being contested. Thus, FERC issued the surrender and removal of the dam (order) improperly, because the 401 has in actuality not been issued, and can’t be until the state appeal has been resolved. The only procedure to stay the FERC order was through the U.S. Court of Appeals.”
Alexander said the power company regrets that the county has filed an appeal.
“We’re certainly disappointed that this is continuing,” he said last week. “We look forward to getting on with removing the Dillsboro Dam and other projects that will benefit Jackson County.”
Alexander said that when the matter comes up in federal court, FERC legal staff will be defending the commission’s orders, and that Duke has moved to become an official party to the case.
Jackson County in 2004 retained energy attorney Paul Nolan of Arlington, Va., who filed the recent federal petition for review on behalf of Jackson County and the town of Franklin. Records show that to date the county has paid Nolan $117,658.77 for his services, though no invoices have been received for several months.
When asked why no recent invoices have been received from Nolan, Westmoreland said via e-mail that Nolan continues to represent the county on a fee basis, but that “most of his current work is being picked up by other private intervening parties.”
In response to the same question, Jackson County Commissioners’ Chairman Brian McMahan said he didn’t know what other intervening parties are paying because they all have their own representation.
Court papers indicate that Friends of Lake Glenville, the only private intervenor in the most recent filing, is represented by attorney Philip Marston of Alexandria, Va.
According to Duke’s Alexander, a power company attorney also asked Westmoreland why there are no recent invoices from Nolan.
“My understanding is that the county manager told our attorney that the county had requested Mr. Nolan not send any more bills until his relicensing work is completed,” Alexander said.
Removal of the Dillsboro Dam is the linchpin of a 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.
While one of Jackson County’s main arguments in opposing dam removal has been its objection to losing the “green” energy potential of the Dillsboro Dam, Alexander contends that eliminating the dam is the plan that actually preserves the most hydroelectric generation.
“(Dam removal) preserves more renewable hydro power in Jackson County than any other proposed option,” Alexander said. “That is, more green energy will remain if the dam goes instead of staying. This is possible because state and federal resource agencies agreed that removal of Dillsboro Dam would provide mitigation for the current renewal of the company’s federal operating licenses for its hydropower facilities in southwestern North Carolina.”
Reporter Justin Goble contributed to this report.
http://www.thesylvaherald.com/html/ferc_oks_duke_proposals.html