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Judge clears way for Dillsboro Dam removal
By Justin Goble
Duke Energy has scored yet another legal victory in its five-plus year fight with Jackson County over the Dillsboro Dam.
Superior Court Judge Zoro Guice signed orders Monday (Jan. 11) denying the county’s request for an injunction against the power company to prevent Duke from moving forward with demolition of the dam. Guice also ordered the county to immediately issue a Land Development Compliance permit to Duke, stating that the power company should not have to seek local permits for demolition operations since it is being ordered by the federal government to remove the dam.
“Jackson County is without authority to deny the permit or require (Duke) to seek any other permits affecting the Dillsboro Dam and powerhouse demolition operation, inasmuch as the Federal Energy Regulatory Commission’s orders with respect to dam and powerhouse removal were issued pursuant to the Federal Power Act,” Guice wrote.
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The Dillsboro Dam, constructed in 1927 by early industrialist C.J. Harris to power his tannery and provide lights for Dillsboro and Sylva, has been at the center of a five-plus year legal battle between Jackson County and Duke Energy. The power company seeks to remove the dam in order to preserve hydroelectric generation at its larger plants; Jackson County has fought to keep the dam both for its historical value and perceived “green energy” benefits. Superior Court Judge Zoro Guice Monday denied the county’s request for an injunction, apparently clearing the way for Duke to proceed with dam removal this month. Dam demolition is expected to begin in February. – Herald photo by Allison Brantley
Guice’s only ruling against Duke was to deny the company’s request to dismiss the case due to “lack of subject matter jurisdiction.” However, Guice ruled that Jackson County could not move forward with condemnation of Duke’s Dillsboro land to create a park until after Duke has removed the dam and powerhouse.
“Jackson County may only proceed with its condemnation action subject to the preemptive nature of the FPA and upon the completion by Duke Energy Carolinas of its obligation under the orders of FERC respecting the Dillsboro Dam, including the removal of the Dillsboro powerhouse,” Guice wrote.
Dam removal is expected to begin in February, according to Fred Alexander, Duke’s district manager for government and business relations.
Monday’s rulings stem from numerous motions Guice heard Nov. 30 regarding several lawsuits. Lawyers representing Duke and Jackson County spent five-and-a-half hours arguing multiple motions in the ongoing legal battle.
Power company lawyers asked Guice to force the county to issue permits allowing demolition of the dam to move forward. Duke also asked for dismissal of the county’s condemnation suit on the basis that only the Washington, D.C., Fourth District circuit federal court has jurisdiction in the case at this point.
The D.C. Court ruled in Duke’s favor last month and denied Jackson County’s challenge of the FERC orders stipulating dam removal.
For their part, lawyers representing Jackson County requested an injunction preventing Duke from moving forward with plans to demolish the dam until the ongoing federal case was settled.
Condemnation of Duke’s Dillsboro land, including the dam and powerhouse, has thus far proven to be a losing strategy, as Guice’s orders are just the latest in a string of rulings favoring Duke.
The D.C. Circuit Court’s Dec. 22 ruling came less than a week after federal regulators issued the final approvals necessary for Duke to begin dismantling the dam.
Dam removal is the linchpin of a cooperative agreement hashed out over three years by Duke and some 40 “stakeholders,” who met monthly during most of that time. Under that agreement, which becomes binding once Duke receives new licenses for its local power plants, the power company will pay Jackson County a lump sum of $350,000 and provide numerous recreational enhancements at its lakes and along the Tuckaseigee River. After May federal mediation talks, Jackson County officials rejected a Duke offer that would have paid the county an additional $225,000.
The Stakeholders Agreement is backed by U.S. Fish and Wildlife, the U.S. Forest Service and the N.C. Division of Water Quality, all of which are given “conditioning authority” under the Federal Power Act, which means they can stipulate conditions in power companies’ licenses.
Jackson County did not sign the Stakeholders Agreement and retained Arlington, Va., attorney Paul Nolan to oppose Duke’s plans.
Jackson County officials in the past have said that they want to keep the Dillsboro Dam in place to preserve its non-polluting “green” electric generating capacity; however, federal regulators in 2007 denied a request from Jackson County to begin producing power there after Duke surrenders the plant.
Duke, meanwhile, maintains that it made the decision to give up its Dillsboro plant in order to preserve generation at its larger, more efficient plants, such as Thorpe on the Tuckaseigee’s West Fork.
According to Alexander, relicensing regulators did not mandate minimum flows, which would require Duke to spill water into the bypassed regions of the East and West forks without first using it to generate power, because the company agreed to restore a free-flowing section of the river in Dillsboro by removing the Dillsboro Dam.
The first dam at Dillsboro was constructed by early industrialist C.J. Harris almost a century ago to provide electricity for his tannery and his home. Flooding washed away the first wooden dam, and the current concrete dam was built in 1927. Harris later formed the Dillsboro and Sylva Electric Co., which was sold in 1957 to Nantahala Power and Light Co. Duke Power acquired NP&L in 1988 but operated it as a separate entity until 2001 when NP&L became part of Duke.
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Instructors Jon Lowrance and Justin Padgett took a trip to West Virginia’s, Pipestem Resort on the rim of the Bluestone River. A beautiful spot for a WMI Wilderness Upgrade for Medical Professionals WUMP…..and all the winter weather we needed to make our simulations…well, less simulated. Folks were mostly from WV with a small contingency of students from Ohio and Pennsylvania…with backgrounds as EMT’s, PA’s, MD’s, and EMTP’s..Law enforcement, Rescue and EMS as well as the military had strong representation. We had a field trips where we were out to check out the local natural resources. There are a couple of pictures here of those fun excursions. The fun,experienced, well witted and attentive students made our five days at Pipestem fly by like WV blizzard. Great times, great audience and great venue! Thanks to all that were a part! In closing, a few fine quotes from the class: “You never start learning!”, “Well we will not let them cut your skivvies -”What, underwear?….I don’t wear underwear - heck I just started wearing socks!”, “Buckle up and shuffle up”, “Yeah that is cool if they cut my pants off, but if they cut my tigger shorts - then it’s game on, I mean for real.”, “Always better to have and not need rather than need and not have.”
