“This is the end of the line. The FERC train stops here,” said Mark Singleton, director of American Whitewater and an advocate of tearing down the dam.
The appeal indeed marked the last chance at getting the energy commission to reverse its decision, but there are several other avenues the county can still pursue to overturn FERCÂ’s decision.
“There are a number of avenues that are still left open. It is far from over,” said County Manager Ken Westmoreland.
One of those options is an appeal before a federal judge.
“We have been building a case for four years alleging FERC hasn’t followed its own procedures,” Westmoreland said.
A hearing before a federal judge could prove more favorable than FERC, which seems to side with the utility industry.
The county is also appealing a permit issued by the state for tearing down the dam. If Jackson is successful in stopping the state permit, the dam canÂ’t come down. The county has several arguments against the state permit, Westmoreland said. A hearing on the state permit is scheduled for July 14.
Another outlet is condemning the dam. The county would simply take the dam from Duke under eminent domain. The county would hire a contractor to operate the dam on the countyÂ’s behalf. The county is soliciting proposals from contractors to do just that, with a deadline of June 2.
However, should the county take the dam through eminent domain, it would need a permit from the energy commission to operate it. That seems unlikely given the number of times Jackson has been struck down by the energy commission. The reply was strongly worded, in essence chastising Jackson County for the audacity of appealing in the first place.
Singleton said it was one of the most strongly worded decrees he has ever seen by FERC. Singleton is disappointed the county plans to continue its fight.
“I am surprised the commissioners continue to throw dollars at this thing when the writing was so apparent much earlier on,” Singleton said.
Why tear down the dam?
Duke has pitched tearing down the dam as compensation for the other dams it operates in the region. Duke Energy has 10 other dams in the region, including those on Lake Glenville and Nantahala Lake. Its permits to operate the dams are up for renewal. To get new permits, Duke has to compensate the public for its use of the rivers. DukeÂ’s answer was tearing down the Dillsboro dam, providing both environmental and recreational benefits.
Jackson leaders opposed the plan for several reasons. Primarily, they felt the Dillsboro dam was an important source of green power and an historic icon worth preserving. The alternate mitigation proposed by Jackson County called for Duke to turn over the dam to the county and pay $500,000 for restoration along the Tucksegee River.
Jackson questions how removing a dam on the Tuckasegee could mitigate for other dams as far away as Nantahala Lake, Hiwasee and the Little Tennessee in Franklin. Oddly, FERC wrote in its reply that tearing down the Dillsboro dam had nothing to do with mitigation for DukeÂ’s other dams.
“As to the contention that the Commission considered the Dillsboro surrender as mitigation for the other projects in the river basin, (Jackson County) is mistaken,” FERC wrote. “(Jackson County) contends that Duke’s settlement agreements viewed removal of the Dillsboro Project as mitigation for continued operation of the other projects. However, the Commission is not bound to accept that view, and indeed, as the record demonstrates, we do not.”