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Tuckasegee Delays Explained

Posted: 01/11/2008
By: Kevin Colburn


Many paddlers are probably wondering what the hold-up is on the releases planned for the West Fork of the Tuckasegee and the Upper Nantahala.  These dam releases should have started in 2006: they were negotiated by a large group of stakeholders and were supported by the Federal Energy Regulatory Commission’s staff analysis. 


For these releases to begin though, Duke Power needs new licenses for their dams.  Before the FERC can issue these licenses, the state of North Carolina needs to first issue mandatory permits to Duke Power.  Duke has asked the state to delay issuing them the state permits until the removal of Dillsboro Dam is certain - and the State has agreed.  The reason for the hold-up is largely Jackson County’s resistance to the removal of Dillsboro Dam.  The County is challenging state and federal permits for the dam removal which were issued in 2007. 


FERC relicenses dozens of dams each year and many communities benefit from the opportunities these processes offer.  Jackson County could benefit too – and richly, but for their love of a small dam, they seem committed to a path of failure.  They are following the advice of their attorney, Paul Nolan. 


Paul Nolan has so far been paid over $117,000 for his advice to the County.  As the press has reported, so far the over one dozen filings made by Nolan for Jackson County have largely fallen on deaf ears at the Federal Energy Regulatory Commission (FERC). 


His most recent advice, which Jackson County accepted this week, was to attempt to take the dam from Duke Power using eminent domain, and install a new dam operator (who would need a FERC license). 


This is not the first time in recent history that they attempted to take over the dam.  In 2005, Mr. Charles Mierek attempted to secure a preliminary permit from the FERC to operate the Dillsboro Dam.  Jackson County, through Paul Nolan, was quick to support this proposal through both an intervention and a rehearing request.  FERC however dismissed it immediately. 


It turns out that Mierek holds the extremely rare if not unique distinction of having been ruled (in 2006) “not fit to receive any additional licenses or exemptions from the Commission…”  FERC commissioners wrote in October of 2005 that we would not issue a license to Mr. Mierek or any entity that is in any way under his control or direction.” FERC bases their findings on the Clifton Mills No 1 Project in South Carolina, where Mierek refused to install a flow gages needed to determine compliance of the project with minimum flow requirements, and subsequently refused to pay civil penalties.


This is not the only project that Mierek and Nolan have worked together on. Mierek and Nolan were both hired by Graham County during the relicensing of the Tapoco Project, which includes Santeetlah Dam.  A few months after that project was over, Mierek requested a permit to operate a hydro project on the base flow of Santeetlah Dam, operated by Alcoa (who objected).  Nolan filed comments on behalf of Jackson County in support of this proposal, which were submitted late and rejected.  FERC rejected Mierek’s application as well.  


In Pennsylvania they are working on a dam together called the Oakland Project, at which Mierek is the owner’s project manager and Nolan is the owner’s attorney.  There is a little problem with this dam – it has a gaping hole in it (see photo above) – that Mierek did not have fixed for an extended time period.  FERC blasted Mierek in a September 28th, 2007 letter stating: 


“There has been a confirmed problem at the dam for over two months and you have demonstrated no effort to fix the problem.” “Your lack of response in a timely manner regarding a matter where someone could be hurt or killed at your dam is unacceptable. By not coordinating with local agencies immediately as the NYRO directed, you reveal a lack of stewardship for utilizing natural resources and open yourself to legal action if anyone is hurt at your dam.”


If FERC had not blocked the effort by Mierek, Nolan, and Jackson County for Mierek to take over Dillsboro Dam  – this is could be happening in Jackson County today. 


Jackson County then requested a preliminary permit from FERC to operate the dam themselves in September of 2007.  FERC immediately rejected the proposal because it conflicts with Duke’s license, our settlement agreement, and FERC’s order to remove the dam.   After two failed attempts, they now intend to try yet again.  We assume FERC will act swiftly and decisively to deny any future permit applications.  

Jackson County is delaying the relicensing of the dams on the Nantahala and Tuckasegee, but their options for doing so are running out.  The advice they are taking has led them down a path that has repeatedly dead-ended.  Their chances of “success” are extremely small – and will come with heavy costs.  They have already paid over $150,000 in legal and consulting fees and will presumably have to pay plenty more.  Looking into the future, it is hard to imagine Jackson County’s new plan working, especially given the track record so far.  


Keeping the dam in place would likely eliminate other relicensing benefits if the settlement agreement is rebalanced to account for Jackson County’s absence and Dillsboro Dam’s presence.  On the chopping block could be the $350,000 Duke agreed to pay Jackson County, a new county park, and even greenways.  What it will not threaten is river flows and access agreements – except by temporarily delaying these initiatives.  These agreements will go into effect when FERC issues new licenses on the West Fork of the Tuck and the Nantahala. 


AW believes promptly removing Dillsboro Dam makes sense.    In short, removal of this outdated dam is good for the river, good for the environment, good for the recreating public, and we believe it is good for the neighboring communities.  We will remain engaged in the various regulatory processes that are now deciding the fate of Dillsboro Dam, and we hope paddlers will get involved if public comment opportunities occur.  We’ll keep you posted on the dam removal, and the West Fork Tuck and Upper Nantahala releases.     

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