20030179 Ver 6_Public Notice Response_20070814 (2)

Page 1 of 1
Subj: Re: 401 notice when was it published in your paper??
Date: 8/14/2007 2:06:25 P.M. Eastern Daylight Time
From: becky@smo__k~mountainnews.com
To: [e-mail]
The notice for written comments on the 401 was not published in our paper.
They addressed a Notice to the Smoky Mountain News, but then sent it to the
Smoky Mountain Times, a totally different newspaper based in Bryson City.
I have made sure they know the differences in the two papers now and have
the right address for us, so we should be getting the notice of the public
hearing whenever that gets scheduled.
On 8/14/07 9:19 AM, "[e-mail]" <[e-mail]> wrote:
> Paul V. Nolan
> 5515 North 17th Street
> Arlington, VA 22205-2722
> Phone: [phone]
> Cell: 703-587-5895
> Fax: [phone]
> Truck: 571.205.0304
> This communication and any accompanying documents are confidential and
> privileged. They are intended for the sole use of the addressee. If you
> receive
> this transmission in error, you are advised that any disclosure, copying,
> distribution, or the taking of any action in reliance upon the communication
> is
> strictly prohibited. Moreover, any such inadvertent disclosure shall not
> compromise or waive the attorney-client privilege as to that communication or
> otherwise. If you have received this communication in error, please contact
> me at
> the Internet address or telephone number provided.
> '**'************~*****************`*** Get a sneak peek of the all-new AOL at
> http://discover.aol.com/memed/aolcom30tour
--~d V~
~~
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Tuesday, August 14, 2007 America Online: Pvnpvn

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PAUL V. NOLAN, Esq.
.5515 North 17th Street
Arlington, Virginia 22205
E-mail: [e-mail]
August 14, 2007
N.C. Division of Water Quality
Attn: John Dorney
Water Quality Section
1650 Mail Service Center
Raleigh, NC 27699-1650
Work: [phone]
Fax: [phone]
Cell: [phone]
Truck: 703-946-8153
RE: Duke Energy Carolinas, LLC.
Water Quality Certification -Dillsboro Dam and Powerhouse Removal
Dear Mr. Dorney:
In response to the public notice for the above captioned water quality certificate
proceeding, the Jackson County Government, the Macon County Government, the
Town of Franklin, and Mr. T.J. Walker request party status, request the scheduling of a
hearing for the second week of October (within the 90-day time period from
publication), and submit the following comments. The comments submitted herein are
by necessity brief due to the difficulties in obtaining access in your Asheville office to
the application for public inspection. Those difficulties are documented in the July 26,
2007-letter from Fish and Wildlife Associates, Inc., addressed to your office. A copy is
attached for your convenience and the comments raised in that letter are incorporated
by reference herein as if set forth fully in the body of this letter.
I would add that I did have an opportunity to review the public application on August 7,
2007, and found it to be in such a disorganized state that I had difficulty in
understanding what documents were attachments to the certificate application and/or
attachments to the mining application, which was an attachment to the certificate
application. A significant problem was that the table of contents, part of the project
narrative, which identified the attachments, was mixed in with the latter half of the
application. The CD for this application is also a mess, with pages from one document
interspersed with others, e.g., FERC notice on the final EA placed before August 11,
2006 USF&WS biological opinion.
Con-~ments:
There is pending in another proceeding a mining permit application filed by
Carolina Sand, Inc., for the dredging of the Dillsboro impoundment. Any action
upon this application during the pendency of the current 401 proceeding would
run afoul of 15A NCAC 01 C.0107, This prohibition should also apply to the

"duplicate" (Duke is substituted for Carolina Sand, Inc., as the application.)
mining permit application contained in the 401 application. It is evident from
review the mining permit applications that they are for the same dredging activity;
therefore, the application in Carolina Sands' name should be dismissed.
The 401 application on file is full of stale documents and truncates the analysis
required of the Division under the NCEPA. For example, and despite your own
public statements' that the removal of the Dillsboro Dam is mitigation for other
Duke hydro projects, the FERC EA included with the 401 application is
incomplete and misleading as to the scope of impacts associated with the action
under consideration by DWQ. For example the EA included in the 401
application is an excerpted copy that seeks to provide information only about the
Dillsboro Dam. Thus, the application impermissibly segments DWQ's
consideration of water quality impacts associated with the dam's removal as that
action impacts other projects' impacts upon water quality without mitigation at
those of the dam sites, e.g., additional minimum flows, instantaneous minimum
flows at the West and East Fork projects.
The photos provided in the 401 application's appendices appear to be old and
fail to show the current silted-in condition of the forebay. See Photos 05, 07 & 08
(undated - other photos are dated March 1, 2007). Attached is a photo taken on
August 6, 2007 of the intake.
3. A hearing is necessary to set forth the parameters for the preparation of an
unbiased scoping document, 15A NCAC 01 C .0106, that fully assesses the
impacts upon water quality at all four projects noted in the FERC EA and subject
to the various Duke settlements.
The Counties, Town and Mr. Walker are concerned that the hearing referred to
in your letter of July 28, 2008, to be held pursuant to 15A NCAC 2H .0504, is too
limited, and at best premature, as its stated purpose is to review comments
received -not necessarily receive additional comments that the public may want
to make at the future hearing. Yet, the problems with obtaining copies of or
access to the public document along with the state of that document, etc.
preclude the filing of comprehensive comments on the 401 applications.
See, e. g., Smoky Mountain News, July 18, 2007 --
These are all legitimate issues for people to make in their public comments,
according to John Dorney, a key player in the permit with the state Division of
Water Quality. However, in Dorney's opinion, the Dillsboro dam removal is
adequate mitigation for Duke's other dams. When an environmental trust fund
is used as mitigation, it is harder to measure the future ecological benefits and
whether it would sufficiently offset the impacts of the dam, Dorney said.
;Emphasis added). Copy attached.

Therefore, in order to demonstrate the need for more information and specifically
information necessary for the consideration of alternatives to dam removal and
the associated impacts upon water quality, the existing Appalachian elktoe
mussel population located downstream of the dam, the local community (socio-
economic, e. g., tourism, renewable power, etc.), I am providing herein the
comments of the counties and town to the FERC draft EA. Please note the
comments regarding one alternative to dam removal by the construction of a fish
passage facility that would also allow for passage of small white water craft
(canoes, Kayaks, etc.) In support of the alternative, I am also attaching herein
comments from Jackson County, dated April 29, 2005 and prepared by Mr. John
Boaze, Fish and Wildlife Associates, Inc., addressing the existence of
Appalachian elktoe mussels and host species of fish above and below the dam.
4. The 401 application also includes a copy of the August 11, 2006 USF&WS
Biological Opinion. The opinion, as stated therein, builds upon previous
documents incorporated by reference. Those documents should be made
available for public inspection. 15A NCAC 01C.0207.
It is important to note that two of the seven known Appalachian elktoe
populations, have experienced a recent decline. See, e.g., N.C. Wildlife
Resources Commission News Releases, November 20, 2007, "Endangered
Mussel Population Declining," copy attached. Clearly, more information is
needed before an action is approved that could irreversibly affect the population
located below the dam.
The current decline should give a pause to the Division to consider that the
stakes are higher now should the dam removal kill of a significant number of the
existing populations and/or the relocated population fails to thrive.
5. The dam divides a cold water fishery (upstream) and a warm water fishery
(downstream). The submitted temperature information needs to be expanded to
assess the impacts upon the downstream warm water fishery as well as the
impacts of lower water temperatures downstream as well as cold water is a
limiting factor on the location and size of Appalachian elktoe mussels. See
attached April 29, 2005 from Mr. John Boaze, Fish and Wildlife Associates, Inc.,
6 The USF&WS Biological Opinion calls for significant surveys downstream of the
dam. See, e.g., p. 44 --
......The Licensee has requested that the Commission limit its
responsibilities regarding the Appalachian elktoe mussel to its proposal to
relocate the part of the population currently located downstream of the
Dillsboro Dam to an area upstream of the reservoir in order to minimize
the effects of dam removal on the population. Instead of requiring the
propagation of juvenile mussels and the release of host species as
recommended in the EA, Duke Power has requested that it be allowed to
3

determine jointly with FWS and NCWRC the best alternatives to address
the possibility of the relocation plan being unsuccessful. The final EA
noted that the potential impact of moving the individual mussels below the
Dillsboro Dam to an area upstream will be scrutinized in a mussel
protection plan. The draft plan is, at best, conceptual in nature;
therefore, assessing the specific effects of these measures and
alternatives associated with the plan in more detail would be
speculative and premature at this time. The actual level of incidental
take will be estimated based on the results of a more detailed, updated
mussel survey of the Dillsboro tailwater area, including the entire reach of
tl~e Tuckasegee River upstream of the Tuckasegee Gorge, to at least the
railroad trestle (RM 30.3), as well as representative sample reaches at
regular intervals from the Gorge to the Fontana reservoir. (Emphasis
added).
The recent population declines and the impacts upon water quality long term
(e.g., temperature changes, higher annual sediment transport downstream of the
dam) and short term siltation, creation of shoals, etc. requires more information
now before the DWQ approved an action that like a bell once rung cannot be
undone.
There is a need for more information on the success of relocation of mussel
species and in particular the Appalachian elktoe.
8. There needs to be a definite plan for mitigation of Appalachian elktoe mussel
declines or failures in their relocation. Aplace-holder in the certificate or a
reopener needs to be transparent and not at the discretion of the applicant or
agencies for implementing. Such clauses when left to the agency's or licensee's
discretion in a certificate are no more useful than a re-opener in a FERC license.
9. The current proceeding needs to be consolidated with those for the East and
West Fork projects as well as that for Bryson so that a comprehensive
assessment of water quality impacts for the river basin can be done and the
need for mitigation of cumulative impacts correctly and fully assessed by DWQ.
As stated in the attached news story, if some believe that the dam removal is for
mitigation of other impacts associated with other projects, then the environmental
document prepared by DWQ needs to be comprehensive in detailing what
impacts are being adequately mitigated especially when some of the impacts to
be mitigated involve other projects' impacts upon water quality.
There is also a need, given the impacts upon water quality from the other
projects as well as those associated with the removal of the dam, for the state to
explain why use of the NCEEP program is not considered as an alternative to
removal of the dam and /or changes to the operation of the East and West Fork
projects. e.g., change to instantaneous run-of-river, additional minimum flows in
their bypass reaches, etc.
4

The process must take into consideration recent State law encouraging
(mandating) the expanded use of renewable sources of energy. The Division
should also take into consideration that the US Government is expected to pass
new energy legislation this year establishing a national renewable portfolio
standard. The hydraulic resources of the Dillsboro Dam site are capable of
being developed with an installed capacity of approximately 700 kW and annual
generation of approximately 3,400,000 kWh. This level of generation would
displace approximately 5,570 barrels of oil or 1570 tons of coal. Given the
recent "Project of the Year Award 2006" by the US EPA to Jackson County for its
green power initiative -Green Energy Park -the potential for hydro power to be
used locally should be considered as an alternative to dam removal.
10. The 401 application also contains a mining permit application for dredging of the
Dillsboro impoundment in the name of Duke Energy Carolinas (legal name not
provided). The processing of this application should proceed in a coordinated
process with the 401 certificate proceeding. Thus, I call to your attention that the
401 noticed did not mention the processing of a mining permit. We also request
intervention in this permit proceeding and copies of any notices issued pursuant
to 15A NCAC 07J .0206 or simi-ar regulation.
11. Recently Duke changed its corporate structure, please advise us whether any
previously issued permits, certificates were modified to reflect the new entity.
Please be advised that FERC found that the entity changed required a transfer
of the hydro licenses for compliance with the Federal Power Act.
12. The information provided in the application is misleading in particular with regard
to the current non-operating status of the project and the impacts associated with
its prior run-of-river operation and that of the other projects that are to be
'mitigated" by the dam's removal. It should be noted that criticisms of run of river
operation of the Dillsboro plant should have included the fact that the upstream
projects' operation established a pulsing flow that significantly controls the
operation of the Dillsboro project's operation.
13. This proceeding should include the Dillsboro Dam relicensing application as well
as the 401 application for the same. The need for the project's energy identified
as well as changes to the project's operation proposed by some agencies,
reduction of impoundment fluctuations, automated operation, gaging, etc. at
Dillsboro as well as for the other projects should be considered as alternatives to
dam removal.
14. There is a need for the Division to consider a systematic program for the
dredging of impoundments of the Duke projects to reduce turbidity and sediment
transport especially during times of heavy rains, storms, etc. as a means for
improving water quality through out the basin. Consideration of just the present
application in its present form curtails this consideration despite the photos
E~rovided in the application showing streams with high turbidity.

Sincerely,
~'aul V.
Paul V. Nolan
Digitally signed by Paul V. Nolan
Nolan DN cn=Paul V Nolan, c=US,
email=pvnpvn @ aol.com
Location: Arlington, VA
Date: 2007.08.14 13:58:09 -04'00'
Cc Ken Westmoreland, Manager, Jackson County
Sam Greenwood, Manager, Macon County
Joe Collins, Mayor, Town of Franklin
Verlin Curtis, Alderman, Town of Franklin
Susan Leveille, Chairwoman, Town of Webster Planning Board
T.J. Walker
Jeff Lineberger -Duke Energy
John Boaze -Fish and Wildlife Associates
Janet Boyer, PE -Asheville Regional Engineer
Attachments: July 26, 2007 letter from Fish and Wildlife Associates, Inc.,
Smoky Mountain News, July 18, 2007
August 6, 2006 Photo of Dillsboro Forebay Intake
Comments to FERC Draft EA of Jackson County, Macon County,
and Town of Franklin
April 29, 2005 letter prepared by Mr. John Boaze
N.C. Wildlife Resources Commission News Releases,
November 20, 2007
6

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idlaiu Office ac: 1~~ SOX `~ ~ Tel (8?$) .t117-{i~05
,~ ~Uartr Tc~«~cr Lane Whlttter, ~~ ?~~~y Fa,~ (82ft} X97-(1213
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July 26, ?047
N,C. Division of Water Quality
Attn: John Dorney
Water Qi~~lity Section
1650 Mail Service Center
Raleigh, NC 27699-1650
RE: Fluke $nergy Carolinas, LLC.
Water Quality Certification - Dillsboro Dam and Powerhouse Removal
Dear Mr. Dcxney:
I3ascd on the Public Notice drat your office issued by letter dated June 29, 2007, for local
publication, for Duke Energy's 401 pern~it applicatio^ for the removal of I?illsboro Dam
and Powerhouse in Jackson County, NC, I followed the Notice's instructions and went to
tide Asheville Regional Office (arriving at approximately 11:15 AM) to review this
da;urrrent. It turns out that no one knew the location of the application.
Ivtike Parker called Kevin Barnett, and I was then informed that the permit application
was not in Asheville as stated in the Public Notice, but rather probably still in the Raleigh
t7t~ice. Furthermore, Mr. Barnett was out of the offrce until 1500 PM, and Mr. Parker
was not familiar with any of the files,
Given that the file for dris project is not in Asheville for public inspection, I am
requesting a copy, on behalf of Jackson and Macon Counties and the Town of Franklin,
at na cost, of the application for laam and Powerhouse removal. I am also requesting
copies of any comments, additional information, correspondence with the applicant, etc.
with regard to the dam and powerhouse removal.
r~s the files were not in the Asheville Regional Office as advertised, ~.ve would
recommend that all parties be given additional time to review these documents. I would
even suggest that the Public Notice be reissued, with a new deadline set for comments.
Also, crow that your agency finally has a completed application for the removal of tl~c
I~iilsboro Dam and Powerhouse, we would st.il} like to have ail the inforYna.tion requested
in the February 6, 2007 to Ms: Cyndi Karoly that is referenced in your letter of July 9,
'?007 to Mayor Collins, Town of k'rank}in. In particu}a.r, I request copies of the letters
and notices sent for publication for all of the current and previous cerdfrcation
~itrplications ailed for the Dillsboro Project (relicensing and license surrender} a.s well as
for the Franklin, Mission and East arrd West h~ork projects.

applications filed for the Dillsboro Project (re[icensing and license surrender) as well as
for the Franklin, Mission and East anc} West Fork projects.
Please 1, if you have any questions.
~. ~j
' John Boaze.
Senior Biologist
Cc: t.'en VJestrnoreiand, Manager, Jackson County
Sam Greenwood, Manager, Macon County
Joe Collins, Mayor, Town of Franklin
Verlin Curtis, Alderman, Totem of Franklin
SUSan Leveille, Chairwoman, Town of Webster Planning Board
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The proposed removal of the Dillsboro dam on the Tuckasegee River is up far
review by state water quality officers, who could make or break Duke Power's
controversial plans to tear doom [he dam.
The state must grant Duke Power a water quality permit before it can remove
the dam. A written public comment period for the permit is currently
underway.
! ".:
The permit application is likely to elicit plenty of public comment given the
! , _ :? l enormous amount of atten[lon the proposed dam removal has attracted.
Opponents [o removal fear a disruption of the river environment -including
.. the fate of a colony of endangered elktoe mussels below the dam -should
backed up sediment behind the dam be unleashed.
"They are placing [hose are risk," Bald John Booze, a biological consultant with
_ _,:'::!I~~_ GS Fish and Wildlife Associates and an opponent of dam removal. "It could go
varong and kill all the mussels all the way down to Fontana. There are better
:~~; it _i ~I'~d i.IO f'/ alternatives."
~`~-511~-!-"~~~~ "^'~~il~ Another concern among [he public Is the loss of the tourism appeal and historic
value of the dam, although those issues don't factor into a water qualify
_::af~'11 „fGili'~[7S permit.
Others support the dam removal and the return of natural river ecosystem to a
-. r
.. J Li L! C ,. ~ . I'''u nearly one-mile stretch behind the dam that is now a slow water pond.
. ~::!I:7 C;t Sf~l ''~J "Dam removal will bring the total length of unimpeded river upstream of
Fontana Lake to 32 miles," said Fred Alexander, spokesperson for Duke
~,_~,.,,,_;Ij~,;~„~; Power's Franklin office.
~lU'FJII_r;;JC1 .:'SCj ~~JCf_'t, Why all the dam talk?
Duke Power is in the midst of getting new federal permits to operate 11 dams
on five rivers around the region. Duke's current permits date back to the
1960s and will soon expire. In exchange for harnessing the public's rivers to
snake hydropower, Duke Power must compensate the public with a host of
environmental and recreational measures.
The corners lone of Duke's mitigation plan is tearing down the aging Dillsboro
dam to restore a section of free-Flowing river. The plan has received mixed
reviews, hoewever. Some like the idea of removing the dam, especially
paddlers. Others feel the region is getting short-changed, claiming that Duke is
off loading an aging, unproductive dam it doesn't really wan[ anyway in lieu of
other mitigation.
Lven Che environmental camp is split on whether tearing down the dam is a
good idea, and whether Duke should get mitigation credit for it. Some
env!ronmentallsts support the idea of restoring the natural river ecosystem.
Others th!nk removing the dam would do more harm than good, upsetting a
river that has long since adapted around the dam. Booze said the dam removal
should not count as mitigation for dams in other counties on other rivers.
It is a sellout," Booze said of dam removal. "say you take out Dillsboro? Does
that i~elp the Little Tennessee River? Nc. Does it help the Oconaluftee River?
No. It is questionable how much it will help the Tuckasegee."
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Booze proposed a fish passage around the dam instead that would allow
aquatic life to move up and down river without risking dam removal.
Some environmentalists argue that even the small amount of hydropower
generated by the Dillsboro dam cuts back on pollution from dirty power -
such as that produced by burning coal -and should be preserved.
Jackson County, which is opposed to the dam removal, has volunteered to
take over running the dam as a form of green power and wants Duke to cough
up other mitigation instead. That other mitigation is namely a trust fund for
environmental initiatives that would help water quality, like land conservation
along the river corridor, erosion prevention or species restoration.
These are all legitimate issues for people to make in their public comments,
according to John Dorney, a key player in the permit with the state Division of
Water Quality. However, in Dorney's opinion, the Dillsboro dam removal is
adequate mitigation for Duke's other dams. When an environmental trust fund
is used as mitigation, it is harder to measure the future ecological benefits and
whether it would sufficiently offset the impacts of the dam, Dorney said.
"We need something definitive that says 'There's the problem, this will fix it,"'
Dorney said.
A hydropower company in Tennessee, Alcoa, recently placed 2,000 acres in a
conservation easement as mitigation for its dam permits, along with a large
[rust fund. Dorney, however, said efforts like Alcoa's are harder to tie to
specific water quality improvements.
"There's protection, but there's no improvement. There's no lift," Dorney said,
"In this case with dam removal, there is an opportunity to improve the
ecological health of the river."
State derision carries weight
Before Duke can tear down the dam, it must also get a permit from the
Federal Energy Regulatory Commission. The federal energy commission not
only has to permit the removal of the dam, but also has [o rule on whether it
suffices as mitigation for Duke's other dams.
The Duke permits are on the agenda for an energy commission meeting on
Thursday, ]uly 19, which could include discussion of a timeline for making a
decision,
The stale permit is an extra layer, aimed primarily at water quality, but it isn't
a token rubber stamp. It carries quite a bit of teeth.
IF v.-e deny the certification, then the federal permit is automatically denied,"
Dorney said.
The state could also dictate environmental considerations Duke must comply
~r~i[h.
"Any conditions we impose is automatically a condition of the federal permit.
Wc- set the stage. The federal agency can be more stringent, but they cannot
be less stringent," said Dorney.
Along with the clout comes liability. If someone doesn't like the permit the
state issues, they could sue. Likewise, if the state refuses to issue a permit,
Duke could sue.
That makes the state permit a key battle in the fight over the Dillsboro dam.
ror rhat reason, Booze said he would like the state to hold an official public
nearing on the dam removal permit instead of simply a written comment
period. If the state gets enough comments asking for a public hearing in lieu of
the v,ritten comment period, the state will agree to hold a public hearing.
Several people and entities sent in requests for a formal public hearing, but
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the Liming of those requests was off, Dorney said. The state hadn't formally
received Duke's permit application yet. Now they have.
"If people want to have a hearing, during this comment period is the time to
te!I us chat," Dorney said. If he gets enough requests for a hearing, Dorney will
recommend that one be held.
Drumming up the requisite number of requests for a public hearing shouldn't
be a problem, Boaze said.
"We can generate all kinds of support for a public hearing," Boaze said
Make your voice heard
To send written public comments on Duke's state dam removal permit, email
[e-mail] by Aug. 15. If you would like to see a public hearing
held, state that in your comments along with your reason why, such as the
additional reformation that you feel could be imparted to thr~ state decisiai
makers during such a hearing.
The state has not made Duke Power's darn removal application available to the
public on the Internet The only copy available for viewing is in the regional
wa[er quality office m Asheville.
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One of the top concerns over the removal of the Dillsboro dam is the
unleashing of sediment backed up behind the dam.
Estimates pey accumulated sediment behind the dam at more than 100,000
cubic yards. Duke Power initially was not going to remove the sediment before
taking out the dam, but instead planned to let it wash down stream in stages
as the dam came down.
"The plan for Dillsboro Dam removal calls for the sediment, or sand, behind
,'J the dam to be alloveed to move down river as it would have naturally," said
Fred Alexander, the Duke Power spokesperson who works out of the utility's
-. .. Franklin office.
~ ' Whether or not Duke dredges the sediment is contingent on the cost,
according to Alexander. Duke hopes that the sediment from behind the dam
_ _. _ ~, _ _ has a monetary value [hat would offset the cos[ of dredging.
"~~ -~ f' ~"t`' f~`~ "Whether or not it can be acted on depends on the commercial value of the
sand to a sand mining company," Alexander said of the dredging.
ri ;;ii i State and federal environmental agencies say otherwise, however. They say
_ .
, . ., Duke will dredge -- period.
_..:sr~ll~:~.
Dredging would be a mandatory condition of a state water quality permit,
'~. '. ij l~L '~!~:'. ~` aihich is necessary for Duke to tear down the dam, according to John Dorney,
supervisor of program development with [he state Division of Water Quality.
_ :; it r :!_ _~ f'dl f`d Dorney, a key environmental officer in issuing the permit, said he made i[

f~~f,
.._I.
~ clear to Duke he would require dredging.
.
_ . "We have to make sure the sediment doesn't impact downstream water,"
Li;r,'Jlit~~l.,lil ,+'~,!j R~ItC"'' Dorney said. Dorney said he does not care how much the dredging costs, but
instead is concerned with protecting water quality.
Other environmental agencies issuing various permits for [he dam removal
have also made it clear they would require sediment dredging as well, like
U 5 Fish and Wildlife.
"The proposal from Duke initially was [hey could flush the sediment
do~~mstream, but because of our concern for the Appalachian elktoe mussel,
an endangered species downstream from the dam, we think it is best to go
ahead and get that sediment removed and no subject the lower part of the
river to any more sedimentation," Cantrell said.
Alexander said Duke's plan to remove the dam without dredging was
"prepared with Input from state and Federal resource agencies." However,
Cantrell said Duke and resource agencies had always differed on the issue of
dredging,
"All along we had recommended the removal of the sediment. The input from
all the agencies was to remove the sediment," Cantrell said.
Despite Alexander's contention that dredging may or may not be in the cards
for dam removal, Duke's permit application to the state says they will dredge
roughly 80,000 cubic yards of the sediment.
E~~en with sediment dredging, however, the "what iP` scenarios remain a [op
concern, simply because dam removal isn't done very often and is still a new
l~~t}J: ~~~~~~~-~~In~~l:~,~n~~JUntainncws.cumiissucs/O7_O7iO7_l8_O7/fi-_sediment buildup.html S,'1 ~~'?007

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science, As recently as the 1990s, the state permitted a dam removal using
explosives to blow it up. That is no longer considered a proper method from
an. environmental standpoint. Dorney said.
Dorney said the best way to remove a dam is in stages, a foot or so at a time,
and that's what the state will require of Duke, Dorney said. This prevents a
.vall of water from causing a blowout to riverbanks downstream. As [he dam
comes down, the water level behind the dam will drop, exposing mounds of
sediment. Equipment will scoop it out before [he dam is lowered some more,
exposing new sediment, and so on, Dorney explained.
The "vehat if' scenario, however, occurs if for some reason the dam collapses
in the midst of tearing it down gradually. Then, a wall of water would wash
down stream, scouring out banks below and unleashing sediment from behind
the dam.
Sometimes, the state requires environmental mitigation for projects that will
upset the water quality. In this case, while there will be water quality
consequences, [he end result will have a positive effect on water quality and
Cherefore wouldn't require mitigation, Dorney said.
"The argument is they are restoring a flowing river, which is mitigation,
Dorney said.
When the water recedes
nnother issue is what to do about the muddy riverbanks left behind after dam
removal is all over. What is now nearly amile-long pond behind the dam
would disappear when the dam comes down, leaving exposed mud banks
along [he river. Those banks are vulnerable to washouts, causing sediment Co
erode into the river, Dorney said.
"Stream bank stability is a real concern," Dorney said.
Plants, vines and other vegetation might naturally crop up along the
riverbanks to hold down the soil, Dorney said. If that doesn't happen, then
Duke will have to go in and plant vegetation and possibly do other types of
stabilization to halt scouring as well. It's a technique that has been used on a
couple of pas[ dam removals down east.
"We've made them go out on a regular basis and get in a boat and get their
boots on and walk up and down the stream bank and look for eroding places.
If they find a problem with stream bank erosion they have to fix it," Dorney
said.
While Duke will be responsible far self-policing the riverbank, Dorney said the
public can call in if they see problems.
"There will be eyes of citizens up and down the river. They are a good check
for us," Dorney said. Water quality officials from Asheville can then do an
inspection, and if a violation is noted Duke can be fined up to 510,000 a day.
After the dam comes down, the hope is that a natural river ecosystem will
return along the nearly one-mile stretch that was turned into aslow-water
pond when the dam was built 80 years ago, Dorney said. But if river life
doesn't return, Duke might have to stock it.
`If it doesn't recover at three of four years, we have to go back and say'OK,
why isn't it returning?"' Dorney said. "We might have to have Chem haul in
aquatic life."
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~~ __ ~~ci ~?~.C OSEC 06/26/X06 02:44:00 PM Docket# P-2698-0 X, ET Ate.
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGYREGULATORY COMMISSION
Duke Power. a Division
of Duke Energy Corporation
P-2601-007 (Bryson)
P-2602-007 (Dillsboro Dam -Surrender}
P-2602-005 (Dillsboro Dam Relicensing)
P-2686-032 (West Fork Tuckasegee)
P-2698-033 (East Fork Tuckasegee)
NONE CONSOLIDATED
Pursuant to the Notice of Availability of Draft Environmental Assessment
("Notice") issued May 10, 2006 in the above-captioned proceedings, Jackson
County (North Carolina), Macon County (North Carolina) and the Town of Franklin
(North Carolina) (collectively, "NC Local Governments") hereby submit these
comments.
INTRODUCTION
(H)aving the resource agencies sign the DPNA Agreement before all the
studies are completed circumvents the NEPA process, thus denying the
public the uninhibited benefit of their independent expertise. This also has
resulted in the agency comments to the Draft EAs being constrained by the
parameters of the executed settlement. That is, discussions of
environmental issues and mitigation are tainted or dismissed if they fall
outside of the settlement.
-- Letter from Jackson County Board of Commissioners to
Attorney General of North Carolina dated August 22, 2005
Hence, we are left with accepting the surrender of the license for this
project. The local landowners and communities surrounding the project will
be left without the beauty and recreation provided by this project as a result
of the partial removal of the dam. l hoped the parties would have been
willing to explore new technological alternatives to a solution required
by a six- year old agreement. As they were not, we are left with the only
available option- accept the surrender, I regretfully concur.

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2
-- Pat Wood, III, Chairman, concurring statement
FPL Energy Maine Hydro, LLC, Project Nos. 2552-
058 and -063 106 FERC ¶61,038 (2004) (emphasis added)
We are interested in any alternatives you may have to address your specific
concerns. I know that there's a lot of concerns out there with what some of
what Staffs recommendations are. We'd like to hear what those are.
-- Allen Creamer, Federal Energy Regulatory Commission
June 8, 2006 Public Comment Hearing, Transcript at 2.
The NC Local Governments believe that there does not need to be a repeat
of the Commission's experience with FPL Energy Main Hydro with regard to the
Dillsboro Dam Project. There are numerous alternatives, which were not
considered in the DEA, that can achieve the asserted goals and benefits identified
in the DEA for the Appalachian Elktoe as well as for tourism, boating and fishing.
On May 10, 2006, the Commission issued the Notice of Availability of Draft
Environmental Assessment (DEA) for all of the above captioned proceedings
except for the relicensing proceeding for the Dillsboro Project. The keystone of
the DEA is surrender of the Dillsboro license and the removal of the historic dam
aid powerhouse. The DEA asserts throughout its text that dam removal and the
restoration of the approximately 0.8 miles presently affected by the impoundment
to a free flowing river habitat will be beneficial. In making this claim the DEA relies
upon several conclusions. For example, at 361 there is this conclusion:
Removal of the dam and powerhouse would also affect historic properties;

- -- ,~~_ ~_?C OS~C ~;6;'~b/~U06 U~:44:UU PM Docket# P-Z6yt~-CCl, E`?' ~L.
3
however the architecture and history of the powerhouse and dam would be
recorded prior to their destruction. Removal of the dam would change the
character of the water body from lacustrine to riverine and would recreate
about 0.8 mile of free flowing river that could be used by bank anglers and
whitewater boaters.
The DEA states at 137:
Removal of Dillsboro dam would restore riverine habitat and also reconnect
fragmented fish and mussel populations. Reconnecting populations
upstream and downstream of the dam is particularly important for
endangered mussels which require a fish host to disperse larval mussels to
upstream habitats.
The DEA states at 255-56:
Removal of Dillsboro dam would add another mile of free-flowing water to
the Tuckasegee River, increasing opportunities for whitewater boating and
canoeing and for riverine angling for native fish and the delayed harvest
managed trout fishery. A portage around Dillsboro dam would be
unnecessary, and access to this site may no longer be
warranted.
Finally., in its summary, the DEA states at 388:
Although relocation efforts should allow most of the mussels to survive dam
removal, it is likely that some would be lost. As a result, the removal of
Dillsboro dam would be likely to adversely affect the Appalachian elktoe
mussel. Overall, however, the relicensing of the projects, including the
removal of the dam, would be beneficial to the mussel due to the increased
riverine habitat from dam removal and minimum flows.
hhe NC Local Governments, and in particular the Jackson County
Government, have filed comments in these proceedings and an offer of
settlement, "The Preferred Settlement Agreement." Unfortunately, the DEA failed
to analyze those comments in detail, and ignored the Preferred Settlement

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Agreement as a duly filed offer of settlement. Thus, rather than. rehash previously
filed comments and concerns, such as the impact of the dam's removal upon the
existing colonies of Appalachian Elktoe due to sediment releases during
demolition, the impact on those designated rare and endangered populations of
any proposed relocation, the loss of the Dillsboro's impoundment as a sediment
trap. the loss of the erosion control benefits that accrue downstream of the dam
and powerhouse, the impact of upstream cold water, etc., the NC Local
Governments will limit these written comments to the premise that the DEA is
fatally flawed. The flaws of particular concern to the NC Local Governments are:
1. the DEA's failure to recognize that the Dillsboro Dam is not an operating
project;
2. the DEA's failure to assess the alternative of proceeding with the
processing of the relicensing application,
3. the DEA's failure to assess the alternative of installation of a fish
passage ramp that would permit passage of fish hosts beneficial to
Appalachian Elktoe and that would also permit an alternative means for
portage;
4. the DEA`s failure to identify the potential impacts of sediment releases
and sediment movement upon all populations of Appalachian Elktoe
located downstream of the Dillsboro Dam.

_-. _..;,,C OS_C ~/~5/2006 02:44:00 PM Docket# P-2698-QrJ1, ET Ate.
5
II.COMMENTS
JILt_SBORO DAM IS A NON-OPEARTING PROJECT
The DEA accepts as a baseline condition that the Dillsboro Dam is a viable
a~~d operating hydroelectric project capable of generating at a consistent level of
performance matching its listed installed capacity of 225 kW (DEA at 24). The
facts are that the Dillsboro Project is not capable of operating, and has not
operated for the past several years, and even prior to that operated at a level
significantly below the asserted annual average of approximately 0.912 GWH. The
~.ssumption that the project is capable of operating has several ramifications.
First, part of the reason that the project is inoperable is that it is fully silted
in with sediment. Thus, the project cannot be operated, as proposed in the
surrender application, as a means for lowering the impoundment as part of the
`iemolition process (Dillsboro Dam, June 2004 Surrender Application at 3-3).
Clearly. the costs as presented for dam removal do not take this into account and
tl~e need to remove this sediment, the volume of which is not accounted for in the
DEA, have to be taken into account.
Second, the operating status of the Dillsboro Project has been cited as a
c~~.use of concern for potential impacts upon the Appalachian Elktoe mussels
located downstream of the dam. Specifically, USF&WS stated in its May 18, 2005
letter, which is quote in the DEA at 38, "We are quite concerned about the current
ROR operation at the Dillsboro Project and its potential adverse effects to federally
!isted aquatic species." FWS (letter from B.P. Cole, Field Supervisor, FWS, to

~~~~_ -~~. Y~'P.C OS~'C U6/26/~UUb U~:44:UU PM llocket# Y-GbyiS-vul, r~~r .vL.
6
M.R. Salas, Secretary, FERC). It is respectfully submitted that the ROR operation
at tl~e Dillsboro Project is the function of upstream releases, the minimum flows of
which were only agreed to in a settlement reached in the late 1990s. Furthermore,
when operating, the Dillsboro Project operated with asix-inch operating band. It is
assumed that this operation was related to the age and configuration of the
generating equipment and the plant's control system. Obviously, a clear
alternative to demolition could have been a stricter ROR requirement, which could
have been facilitated by the rehabilitation of the project to fully utilize the hydraulic
resources of the site as they exist today without running the risk of adversely
impacting existing downstream populations of the Appalachian Elktoe.
Another problem with the Project's non-operating status is that the use of a
r~on-operating project does not offer any real mitigation as an offset to the
bargained for benefits asserted in the TCST settlement offer. Not to regress too
much, it is necessary to recall previous comments on the illusionary nature of the
TCST settlement offer, especially as the DEA doe not recommend that the plans,
schedules, timing of payments, etc., for enchainment projects (e.g. recreation
facilities) be clarified and made more rigorous.
The failure of the DEA to address the Project's inability to operate reflects a
glaring deficiency in the record for the surrender proceeding. It is noted that this
might be due to the Commission's de facto stay of the processing of the Dillsboro
Dam relicensing application, which might have cause to take a more rigorous look
at recent operations. It is noted however, that despite the fact the relicensing and

~_ __. _~~-'C OS~C Otii~S/2006 02:44:00 PM Doc'cet# P-2698-C01, ET Ate.

surrender proceedings were not consolidated, which would have obviated the
need to request an alternative assessment for continued project operation and
enhancement to generating capacity, the DEA does import information from that
proceeding.
Lii'~,~11"1'ED AbTERNATNES CONSIDERED BY DEA
The DEA at 333 states the alternatives considered therein with regard to
the Dillsboro Project's surrender as follows:
(1) surrender the license and remove the dam and powerhouse (Duke's
proposal);
(2) surrender the license and remove the dam, but leave the powerhouse
(alternative 1); and
(3) surrender the license and leave the dam and powerhouse intact
(alternative 2).
Under the no-action alternative the project would continue to operate and generate
approximately 0.912 GWH per year (DEA at 307). The negative annual operating
cost is not justified, uses stale market values, and ignores the potential for "green
energy credits," and that North Carolina in 2005 introduced legislation for
renewables that would warrant a harder look at maintaining the Project as a
renewable and local source of power.
In Madison Electric Works, the April 2006 EA (at 4) also considered the
alternative to dam removal of "allowing the disconnecting of the powerhouse from
ti-~e grid, and allowing for the dam to remain intact (reverting to new ownership or

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O
state jurisdiction. Madison Electric Works, 115 FERC ¶ 62,113 (May 1, 2006). It
is respectfully submitted that this alternative should have been considered. It is
practicable and feasible.
This alternative would avoid the costs and adverse impacts of dam removal,
which the DEA acknowledges will have adverse impacts upon Appalachian Elktoe
mussels that are not transplanted or do riot thrive after being transplanted. These
impacts have potential effects to the habitat, the mussel population itself, and the
host fish which are critical to the survival of the existing population. There has
been no clear discussion of these effects, any identification of the potential
benefits to accrue over the "no action," or any other alternative of activities that
'jeopardize the continued existence" of a listed endangered species. Appalachian
EII<toe Recovery Plan, attachment to USF&WS letter of March 18, 2005,
Fed..Reg. Vol. 67, No. 188, p. 61016 at 61023.
The dam remaining in place would keep a valued tourist attraction in place
~~nd not affect fishing in the impoundment and below the dam. As to whitewater
boating, it is respectfully noted that the DEA at several points makes the statement
that fishing occurs upstream of the dam and boating downstream, which is not true
for both activities. Portage around the 12-foot high dam is neither difficult nor
hazardous. It can be accomplished on either bank without trespass (personal
communication with the Manager of the Dillsboro Inn, June 8, 2006).
Furthermore, although the goal of remediation of the fragmentation of the
Appalachian Elktoe mussel populations upstream and downstream has not been

- _ _-_ ~'-?<"' OSEC ~~5,'?5/2005 02:44:OC PM Docket# P-25U~ ~~U-, E"' Ate.

proven to be necessary for delisting, that goal can be accomplished solely with the
construction of a fish passage ramp. As noted at the June 8, 2006 Public
Comment Hearing by Mr. John Boaze (consultant to NC Local Governments) a
preliminary assessment of such a ramp passage facility indicated that costs would
be less than half of the questionable removal costs asserted by Duke, which would
leave more funds for mitigation measures that could have a more direct impact
upon the State's fishery resources. For example, Mr. Boaze identified at the June
~ hearing the potential for the removal of an abandoned hydro project on the
Henry Fork River in Catawba County, North Carolina that would open
approximately 183 miles of river -not the less than one river mile the removal of
Dillsboro would effect (June 8 Transcript at 38).
Furthermore, not removing the dam and powerhouse would avoid the
I~otential for downstream erosion of the right bank, upon which some facilities and
buildings of the Dillsboro Inn are located, and which are presently protected from
high flows by the presence of the powerhouse's foundation. Moreover, and not
addressed in the DEA, an alternative to dam removal would avoid impacts to the
small island of trees that is located between the tailrace and spillway downstream
of ti~~e dam. This island is used for bank fishing downstream of the dam.
It is respectfully submitted that leaving the dam and powerhouse in place
a voids harm and with a fish passage ramp constructed the benefits to dam
removal noted in the DEA -reduce habitat fragmentation, facilitate boating,
eliminate the need for portage of a 12-foot high dam, etc. -can be accommodated

.. __.__'/2U _ ~Kl. VJL'C Vb/Gb; GVVb UG:44: W Yi"1 llOCK2Lif Y-GbyLS-VVl, ~'1' HL.
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at a cost significantly less than dam removal, etc. Also, the benefits could be
realized sooner as the permitting process for installation of a ramp would be
shorter than for dam removal (even if not contested). It should go without saying
that passage could have been ordered under the current license, as the
Commission had reserved authority under Article 11 (and 22) to require, after
notice and opportunity for hearing, the construction of such facilities as a fish
passage ramp.
A conceptual drawing of a fish ramp is attached hereto as Attachment A.
The NC Local Governments respectfully assert that DEA should also have
considered the alternative of having the project's operating capability restored, as
licensed, capable of generating 1.4 GWH, with installation of a fish passage ramp
and modifications to its ROR to reduce impoundment fluctuations. Such an
alternative would achieve most, if not all of the same benefits of a surrender with
the dam and powerhouse not removed. Moreover, it would maintain a viable
source of renewable generation in an area that has no other significant sources of
generation available to serve local businesses and residents, with none of the
attendant risk to the Appalachian Elktoe or other aquatic resources.
i3Y-PASS REACHES MINIMUM FLOWS
The NC Local Governments provide the following criticism to the
r7~ethodologies employed in determining the recommended minimum flows to this
section of the Tuckasegee River. As the flows in question are actually
"negotiated" flows, the NC Local Governments do not take issue with the flows

__ .%~'R.C OSEC 06/26/2006 02:44:00 PM Dockets P-2698-OC1, ET A~.
themselves. However, the DEA does not address nor make the connection
between the recommended minimum flows for the projects upstream of Dillsboro
and how those flows could in any way benefit the immediate habitat upstream and
downstream of the Dillsboro Dam. Moreover, the DEA's treatment of sediment
removal of the impoundments is contrary to the goal of benefiting downstream
habitat as most of the impoundments no longer have the capacity to accept
sediment and pass that sediment downstream, which is counter to the habitat
requirements necessary for the survival of Appalachian Elktoe mussel population.
,4DDITIONAL COMMENTS
TCST Setf/ement Offer. The entire analysis in the DEA rests upon the
TCST Agreement that Duke tendered as an offer of settlement pursuant to Rule
602 of the Commission's rules of practice and procedure. Under the licensing
alternatives proposed by the TCST Agreement, the Dillsboro Dam and its
powerhouse will be removed in lieu of the agencies asking for upstream fish
passage facilities at the other projects, even though there has been no showing of
a need for such facilities. Which causes one to wonder why the Bryson Dam,
~~~hich is also located in a designated critical habitat area, is not required to be
removed or install a fish passage facility? Clearly the DEA's claimed assessment
of cumulative impacts is specious. Dillsboro Dam does not have or contribute to
cumulative impacts. The impacts of concern are related to sediment
~?~isrnanagement in the individual impoundments, the minimum flows previously

~- ~-c- ~~_'. F'~RC OSEC 06/26/2006 02:44:00 PM Docket# P-2698-001, ET AL.
12
not implemented then negotiated for the upstream projects, and if fish passage is
an issue -then the absence of such facilities downstream.
Duke unequivocally states in its surrender application that the TCST is "a
legally binding settlement agreement." Dillsboro Dam Surrender Application at 3.
As has been pointed out in earlier comments, because the resource agencies that
signed the agreement have purported to contractually bind them to refuse to
consider any alternatives to those adopted by the TCST Agreement,' they will not
even review alternatives such as those contained in the Preferred Settlement
Agreement, thereby creating a legally untenable position.
As noted in earlier filings made by Jackson County, the TCST Agreement is
impossibly inconsistent here: while Section 15.4 prohibits the agencies from
supporting any alternative that conflicts with the Duke-sponsored TCST
Agreement, Section 15.2 asserts that the agreement will not prevent any
governmental agency from complying with its mandated statutory responsibilities.
I-fence, if Section 15.2 means what it says, then the Section 15.4 prohibition of
s~.ipporting any conflicting alternative is meaningless. If, on the other hand,
~ectio~~ 15.4 means what it says, then Section 15.2's attempt to preserve the
agencies from formally signing away their responsibilities is itself a legal mirage
and a prohibition on the exercise of the agencies' exercise of their authorities that
is contrary to the public interest as it denies the public the benefit of the agencies'
TCST Agreement Section 15.4 states that the signatory Parties "shall not request or support: (1)
Any FERC license article or terms for any of the DPNA Hydro Projects that conflict with the
requirements of this Settlement Agreement or that add substantial additional burdens, costs, or
risks to DPNA beyond those to which all Parties have herein agreed."

__.__.,°ed rEP.C OSEC 06/26/2006 02:44:00 PM Docket# P-2698-001, ET AL.
13
unfettered expertise and responsibilities conferred upon them by state and federal
governments.
Inconsistencies in the text aside, the argument that the agencies are free to
carry out their statutory responsibilities is belied by the fact that here the State
agency itself interprets the situation as precluding discussion of alternatives
to the TCST Agreement. Thus, in response to a request from the NC Local
Governments' representative to discuss alternatives to the removal of the Dillsboro
Dam - i.e. such as the alternative proposed in the Preferred Settlement
Agreement -- the North Carolina Wildlife Resources Commission's (NC WRC)
representative replied that he was "not in a position to discuss this issue" until the
FERC makes its decision. See email in Attachment B hereto. Plainly, the NC
WRC appears to understand that it is "not in a position" to even discuss
alternatives to the TCST Agreement. Hence, if Duke interprets the TCST
Agreement as allowing the governmental parties to support and advocate
alternatives to that agreement, it should say so clearly and unambiguously and in
a binding document. Absent that, one is left to conclude that the governmental
parties believe that they are bound and are "not in a position to discuss"
alternatives to the Duke-sponsored proposal until after the Commission has acted.
As discussed below, it should be noted that the inability (e.g., refusal) of the
agencies to assist the NC Local Governments in their efforts to define and scope
out alternatives to the relicensing proposals of Duke, including removal of the
Dillsboro Dam, stream and sediment mitigations, etc. has hindered their ability to

__ 3C OSEC 06/26/2006 02:4:00 PM Docket# P-269°-00'_, ET AL.
14
advocate alternatives before the Commission. Nonetheless, it remains the
responsibility of the Commission to scope out and assess alternatives.
The Commission must ascertain whether the TCST Agreement that
constitutes the Recommended Alternative is a legally binding document.
There is a separate question whether a North Carolina agency may lawfully bind
itself to a contract that purports to preclude it from supporting alternatives in the
licensing process. So, too, should there be an assessment of the authority of all
state and federal agencies to settlements that mandate pre-determined comments,
positions, etc., by such agencies.
Essential instream flow studies required to evaluate alternatives such
~,:~ the retention of the Dillsboro Dam are excluded from the public record,
~,recluding a meaningful evaluation of that alternative by the Draft Combined
EA. In order to evaluate the implications of retaining the Dillsboro Dam (as
proposed in the Preferred Settlement Agreement), the Division of Water
Resources (DWR) of the State's Department of Environment and Natural
Resources (DENR) tasked Duke to conduct new stream flow studies, the results of
which were to be used to evaluate in-stream flows at the projects to address
protection of instream biological resources, recreational activities, and
maintenance of viable project economics. These studies are not in the record
r~ere and in fact are unavailable to the public. Efforts to obtain the studies from

__:i;ed r~RC OSEC 06/26/2006 02:44:00 PM Docket# P-2698-001, ET A:~. -
15
the DWR have been greeted with official silence. See Letter dated February 7,
2006 from John L. Boaze to John Sutherland, Water Planning Section Chief, NC
DENR, DWR requesting a copy of the results of these studies in order to
complete the record for this proceeding that is before the FERC." Copy of the
February 7, 2006 letter is attached as Attachment C hereto. A recent response
resulted in the offering of a hard date that would have to be inputted and the
analyses recreated. Essentially, the response was of no benefit in evaluating
alternative minimum flows.
There are indications that these studies show that the appropriate flows
required in the event the Dillsboro Dam were retained are materially less than
previously believed, a finding that would have major implications on the evaluation
of alternatives to the TCST Agreement. But since the results remain non-public
(and in fact it is not entirely clear whether Duke has finalized the studies), there is
no way to say. In effect the relevant data required to evaluate portions of the
competing alternatives are simply not before the FERC despite repeated efforts by
parties to ensure their inclusion in the public record.
The bottom line is that the present record is insufficient to allow a review of
the alternatives and the discussion of this issue in the DEA is thus fatally
inadequate.
Failure to evaluate the Preferred Settlement Agreement alternatives.
7"he NC Local Governments adopt and support the position taken by FOLG

_ -. _ - ;~d FERC OSEC 06;26/2006 02:44:00 PM Docket# P-2698-001, ET AL.
16
in their comments filed in response to the May 10, 2006 DEA. To remedy this
gaping hole in the relevant documentation before the DWQ, on February 10, 2006,
Mr. Bonze, on behalf of Jackson and Macon Counties and the Town of Franklin
subr7~itted the Preferred Settlement Agreement. Mr. Bonze noted there that it
should be included in the agency's deliberations in order to have a complete
record and that it should be available for public review at the time the DWR
considered Duke's 401 permit application for projects on inter alia the Nantahala,
Hiwassee and Little Tennessee rivers.
Mr. Bonze also noted that the instream flow needs (mentioned above)
should also be included in the agency's public record in making its determination.
See Letter dated February 10, 2006 from John Bonze to John Dorney, Division of
Water Quality (included as Attachment C hereto). Since those studies are non-
public, there is no way for anyone other than Duke - or this Commission - to
ensure that they are put into the record.
The impossibility of evaluating the action proposed in the TCST
,~~reement without considering the alternatives in the Preferred Settlement
,'~~reement. The USF&WS appears to have now understood the box into which it
f-~as been maneuvered by Duke. In its comments, USF&WS has made it
unmistakably clear that it had expected the Commission to move on the Dillsboro
surrender proceeding before proceeding here and that therefore its analysis here
~~resumes the dam removal option there. Hence its comments and

._'ERC OSEC C6/26/2006 02:44:00 PM Docket# P-2698-001, ET AL.
17
recommendations, terms and conditions are "provisional," depending on the
Commission's decision on that issue and may be revised or supplemented in the
future.2 In plain English, that appears to say that USF&WS has been put in a
position where it is waiting for the Commission to choose the dam removal
alternative in Docket No. P-2602 before it can evaluate the proposal before it in
th~,e instant proceedings.
This shows bluntly how the Commission's decision-making process here is
fundamentally and fatally flawed: instead of the review of alternatives
preceding the decision, the resource agency is presuming the Commission's
decision before it can evaluate the alternatives. Such a "decide-first-and-ask-
questions-later" process cannot constitute reasoned decision-making required
under the Federal Power Act nor can it satisfy NEPA's requirement for alternatives
to be reviewed and analyzed before -not after -the Federal decision is made.
Implications for the Commission's determination here and potential
ruciicial review. The NC Local Governments respectfully note:
under NEPA and the implementing regulations, FERC is required to
"study, develop, and describe appropriate alternatives to
recommended courses of action in any proposal which involves
unresolved conflicts concerning alternative uses of available
resources."3
See p. 8-3 of DOI letter, dated June 23, 2006, transmitting the USF&WS' "SUBSTANTIVE
COfvIMENTS."
42 USC 4332 (E).

~~ ,c-. _. ~.~r ``SEC 06/25/2006 02:4x:00 PM Docket# P-2698-001: ET AL.
t~
The Commission cannot evaluate such alternatives without factual
and analytic support, much of which is conducted by the various
resource agencies within their own specialized areas of expertise.
The Preferred Settlement Agreement filed in June of 2005 is a
.carefully structured and broadly supported set of alternatives that
includes many features (such as the retention of the Dillsboro Dam
and impoundment sediment management) that have significant
implications on project-related water quality and quantity issues,
endangered species, biological resources, recreational activities, and
the like.
y The evaluation of these alternatives requires various studies,
including for example, instream flow. studies from the State's Division
of Water Resources and discussions with State Wildlife Resources
Commission.
The TCST Agreement purports to prohibit the signatory resource
agencies from supporting any alternative other the one already
agreed to and at least one of these agencies has refused to
discuss alternatives to the Duke proposal until after the FERC
makes its decision, stating that "[u]ntil FERC makes a decision in
this matter, I don't believe (we] are in a position to discuss this
issue. "'
r Hence the absurd spectacle: an agency responsible for reviewing
alternatives to removing the Dillsboro Dam believes it cannot
begin discussing alternatives until after the FERC has chosen
among them.
If the Commission continues down this path, it will find itself eventually
asking a Court of Appeals to approve a process that utterly circumvents NEPA's
requirement to consider alternatives before -not after -making its decision and
that makes a mockery of the agency's efforts to determine what set of license
terms are "best adapted" to meet the Federal Power Act's statutory criteria. In
short, by essentially ignoring all the proposals in the Preferred Settlement
' tniail dated January 19, 2006 from Chris Goudreau, NC WRC to John Boaze (included here as
Altachrnent B).

~~;', FERC OSEC 06/26/2006 02:44:00 PM Docket# P-2598-001, ET AL.
19
Agreement, the DEA has failed to consider the alternative of retaining the Dillsboro
Dam and powerhouse -and the process used to create the TCST Agreement
results in the resource agencies declining to even study or discuss that
alternative until after the Commission has already acted. This studied refusal
to consider alternatives during the licensing process is exactly what NEPA forbids
ar~d precludes the Commission from meeting the FPA Section 10 standard as well.
While the range of alternatives an agency must consider may be smaller in
an EA than in an EIS,S the Commission's discretion in defining the range of
aiternatives must still be exercised reasonably and not abused.6 And surely the
absence of any discussion of the alternative is a telltale sign of such abuse.
Perhaps even more telling, such a wiling refusal to meaningfully evaluate
alternatives is forbidden by Section 10 of the FPA as well as NEPA. Section 10
requires the Commission to choose the plan that is "best adapted" to a
comprehensive plan for meeting the various statutory criteria. The statutory term
'best" requires a comparison, a determination that one proposal is better than
a~~other until it determines which is the "best." The Commission logically cannot
declare a plan "best adapted" to a comprehensive plan that meets the statutory
requirements without having determined that it is better than the alternatives.' And
Friends of the Ompompanoosuc v. FERC, 968 F. 2d 1549, 1558 (2d Cir. 1992); Mt. Lookout-Mt.
I'Jebo Prop. Prot. Assn v. Fed. Energy Regulatory Comm'n, 143 F.3d 165, 172 (4th Cir. 1998).
Id. (FERC discretion in defining appropriate range of alternatives reviewed for abuse of
discretion).
In short. while NEPA's requirement is fundamentally a procedural requirement, the requirement
~~ ~ the Federal Power Act to select the "best adapted" plan is a substantive requirement to evaluate
~~iiernatives. See Friends Of The River v. FERC , 720 F.2d 93 (D.C. Cir. 1983),

~ ~_ ~cr-,~~u FERC OSEC 06/26/2006 02:44:00 PM Docket# P-2698-C01, ET AL.
7Q
it cannot make such a determination in an informational and analytic void. Yet
creating that void -precluding the evaluation and consideration of alternatives - is
what the TCST Agreement was all about.
In short, while a reviewing court is not empowered to substitute its judgment
for that of the agency,8 this hardly excuses the Commission from the duty to
affirmatively exercise that judgment. That means that the agency may not
sanction a procedure that excludes key alternatives from consideration before the
review process has even begun; nor may it blindly adopt a proposed offer of
settlement without making an independent judgment that it meets the public
interest standards of the statute and is the alternative "best adapted" to the
statutory standards under Section 10.9
Duke has tried to have it both ways: get the resource agencies to commit
to apre-determined alternative before other alternatives are even proposed -and
then turn around and claim that the agencies are perfectly free to ignore the core
provisions of the agreement. Oliver Wendell Holmes once famously remarked that
"rnen must turn square corners when they deal with the government." Rock Island
A & L R. Co. v. US, 254 U.S. 141, 143 (1920). Borrowing the phrase from the
1933 CDC.0000265<http://www.versuslaw.com>), ¶ 83 (Bazelon, Senior Circuit Judge, dissenting)
(FPA s public interest licensing standard requires that FERC take a comprehensive, regional
approach in investigating the need for and alternatives to a proposed hydroelectric facility).
`' Citizens To Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 28 L. Ed. 2d 136, 91 S. Ct. 814
(1971).
Cf Tejas Power Corp. v. FERC, 908 F.2d 998 (DC Cir. 1990), 1990.CDC.0000257
<http:!lwww versuslaw.com>. (Commission may approve a settlement under the Natural Gas Act
"only if, in its independent judgment" it meets statutory public convenience and necessity standard).

- _ _ ~~d -RC OSEC Ob/26!2006 02:44:00 PM Docket# P-2698-001, ET AL. '
21
Commission's then Administrative Law Judge Benkin from nearly three decades
ago.. the TCST Agreement hasn't squared its corners here - "not by half."
License Term and EIS. The NC Local Governments respectfully request
that the an EIS should be prepared that takes into consideration the need to
complete surveys and assessments of the Appalachian Elktoe mussels
downstream of the Dillsboro Dam down to Fontana Dam. These studies have
been requested in the past and the need for them has been included in previous
comments noting the shortcoming of the previous survey -only one darn length
downstream, etc.
When one considers that the DEA is silent on length of license terms for
the relicensing proceedings, and despite the paucity of mitigation being offered
acid the proposed elimination of one project and no additional generation at the
others, there is a possibility that the long-term operation of the project will require
additional mitigation and the fashioning of appropriate reopeners, the vary devices
that the TCST prohibits any signatory from requesting. See TCST, Section 15.4 -
iirnits to standard reopeners in the appropriate Form L.
III. CONCLUSION
It is clear from the recent June 8, 2006 Public Comment Hearing, that there
is local support for the retention of the Dillsboro Dam and powerhouse.
Unfortunately, the same hearing shows how divisive the entire TCST agreement

_, c~:~ r_d _='EP.C OSEC 06/26/2006 02:44:00 PM Docket# P-2698-001, ET AL.
22
has become as some speakers clearly articulated concerns about flooding, private
property rights, the need for more access to the river segments for boating and
fishing, police and rescue issues, and tourism activities including hiking, sightsee,
antiquing, fishing, boating (impoundment, rafting, etc.), canoeing, and kayaking
(Intermediate and Advanced). The hearing clearly revealed that alteration to the
TCST flow regimes on the East and West Forks could be done in a manner that
would be more conducive to commercial and private kayaking on the East Fork,
that enhancements could be made to the East Fork for a better whitewater
experience, and that the West Fork (Gorge) should be left to experts. The hearing
also showed a need for more measures to protect the public from flooding events
and sudden rises in water levels.
The NC Local Governments believe that a hard look at all of the comments
filed, and in particular the statements made at the June 8 hearing, should provide
a workable solution that would result in the timely relicensing of the projects with
either the continued operation of Dillsboro, or the surrender of its license with the
daam and powerhouse left in place.
Respectfully submitted this 26'" day of June 2006
Paul V. Nolan, Esq.
Counsel to Jackson County Government
Jackson County, North Carolina

_,_ =c1 _~C OSEC C'h!~c =0'~c J~.G,.,~~ ppr Doc~ec~ P ~.~ ,, -
~~
CERTIFICATE OF SERVICE
I hereby certify that I have this day served the foregoing document upon
each person designated on the official service lists for the above-captioned
projects in accordance Rule 2010.
Dated this 26`" day of June 2006.
Paul V Nolan, Esq.
5515 fJorth 17th Street
Arlington, VA 22205

A1~TACHEMENT A

._- ~d _':?_C OSEC 05%26/2006 02:44:00 PM Docket# P-2698-001, ET AL.
~;~ ~sted Fish Passage Device
for Dillsboro Dam
Rock Ramp Fishway
Plan View
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_ _ ~_-- 'ec~-i~,~ed FERC OSEC 05/26/2006 02:44:00 PM Docket# P-2698-001, ET AL.
Rock Ramp -Profile. View
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ece_sed FFRC OSEC 06/26/2006 02:44:00 PM Docket# P-2698-001, ET AL.
Rock Ramp -Cross-Section View
r~sl~
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_ ~._ ..d _ .'~ OSEC Cb~ ~b.'2uJ" 02.4' .00 PPS Docket# P-~5~2- ~_, _T ~.~.
ATTACHMENT B

_ ,ad , ~=:E_C 0~'EC JG _~ x'005 0':44: ~r_~ PI~i Doc]:et~# n ~hGS-''~=i, ~_ ~_~.
Paul: .-~ttachcd this email tc~ my comments
-------- ~~rl~~lna~ McSSa~?c --------
Subjcct:Rl=: Dillsboro Dam removal
l3~-te:Thu. 19 Jan ?006 0:32:25 -0~00
i~--om:Goudreau, Chris u(~rii,_.~,o_uiircau~~rnc~~ili(lif~..,_>r~~,.-
To:'J~>hn Boazc' _.1?I,~~_I_,~a ~`ch~ct.n~t_----
CC:'~larl: Cantrell' _~'(ari: __ t'ururcllu I~~~,.~~~~~?, 'Stc~~c Recd'
._
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_ _o the tr~_,G~ nt r~". ^iil~l_,~i_ Uam? TL a~o~i~' L,e __ --
_ ~~ o;: ar ~~ne ~~I~,.r_~.. .a~tl~ng this ia~.,_~~.
i]a<;,n '~o,ri _~. u~ ~.•~e17 ~.v '-r; ~'_h; ~ i. r. r_ _ _s~~ia than 7
~- is-~ ailli[1~ r~, ~.. ",J a~.~ 6~~~-Y ;.'.,T `=~C[leLh]I~:C~ Y'v-t t. U~ill .~elr~ _h
- _. _ P` opl~ of ~~]PIC.
~~~ -ion _ po~~ ib1e.
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1 ~ - _

_ ~_ r~~~~- ~; ~4'?C GSEC 06'2b!2006 02.:44:CJ PM Docket; P-2~9°-OG1, H,T _~.
ATTACHMENT C

Fish and Wildlife Associates, Inc.
iVl~in Office at:
P. O. Box 241
Whittier, NC 28789
Tel [phone]
Fax [phone]
Email [e-mail]
25 "Water Tower Lane
Whittier, NC 28789
,Ioiu~i Sutherland,
Watc;rr Planning Section Chief
I~'~ DENR, DWR
1 b 1 I Ivlail Service
~:uei~,h, NC 27699-1611
February 7, 2006
1~~;: In stream flow studies for FERC Projects # Nantahala-2692; Thorpe-2686;
Tuckasegee-268b; Cedar Cliff-2698; Bear Creek-2698; Tennessee Creek-2698; Bryson-
2601; Dillsboro-2602; Franklin-2603; and Mrssion-2619.
i~~<a- ~~~r. Sutherland:
~~; p:u~t of the relicensing process, Duke Power Company was required by your office to
c;~tduct new stream flow studies for the Tennessee Creek bypass, Nantahala River
doarrrstream of the Powerhouse and Tuckasegce River downstream of Caney Fork Creek.
In addition, a reanalysis of previous in stream flow studies for the East Fork (Wolf Creek
by;~t:ss and East Fork between Cedar Cliff Powerhouse and West Fork confluence), West
pork (Thorpe bypass, West Fork between Tuckasegce Powerhouse and confluence with
1/t fork and West ForklEast Fork confluence to Caney fork Creek) and Nantahala River
1;~~;~s (Nantahala Dam to Dicks Creek confluence, Dicks Creek confluence to Whiteoak
Cri;l wnfluence with Nantahala bypass and Whiteoak Creek confluence to Nantahala
1';~ti~erhouse) was requested.
t~.~ st<iteii in the study plan- "The basis for this study are contained in 18CFR4.51 and
i ~DFR4.61 under basic information filing requirements relative to descriptions of project-
r~;ated water quality and quantity issues. Additionally, flow-related issues are covered
u~.der the Fish and Wildlife Coordination Act, the Clean Water Act, Section 401 and the
t~<orth Carolina General Statute Chapter 1~I3, Article I (powers and duties of the DENR).
f'urtl-erntore, areview of the in stream flow study plans referenced "The results of the
src~a:n slow studies will be used to evaluate the in stream flows at referenced projects to
uL=,lr~r;ss protection of in stream biological resources, recreational activities, and
ic~intenance of viable project economics".

Also, "Expected benefits of these stream flow studies will be the adoption of in stream
flows for NPL projects that will adequately address the protection of in stream biological
resources, recreational activities and maintenance of viable project economics".
~Co date, I have not been able to locate a final report of the required studies. Therefore, I
would appreciate receiving a copy of the results of the studies from your office.
Information that I am seeking from your office should include, but not be limited to,
electric files of all output data and copies of all reports, notes, etc. from the negotiation
meetings between your agency, the NC Wildlife Resources Commission, and the U. S.
Kish and Wildlife Service and the applicant, Duke Power Company. All of this
information is needed to complete the record for this proceeding that is before the FERC.
Sincerely;
~ ~~
~~~~
Join L_ Boaze,
SerYior Biologist
C'c: Jefl'rey G. Lineberger, P. E., Manager, Hydro Licensing, Duke Power
Ken Westmoreland, Manager, Jackson County
Saris Greenwood, Manager, Macon County
Verlin Curtis, Councilman, Town of Franklin

~_-. ed_ ~ cY.C OSEC ~~, , ,o!~~~`?e 02:44:'JO PT^ Docket# P why°-501, 'I _:~.
ATTAC H IO/I E N T D

Fish and Wildlife Associaties, Inc.
;'Main Ot~ice at: P. d. Box 241 Tel [phone]
2S Water Tower Lane Whittier, NC 28789 Fax [phone]
Whittier, NC 28789
Email [e-mail]
Febn~ary 10, 2006
Division of Water Quality
t-~ttn: John Dorney
1628 ~/fail Service Center
l~.tleiglr, NC 27699-1628
~SL:t1' Pvfr. Dorney:
{}rE 1>elzalf of Jackson and Macon Counties and the Town of Franklin, I am enclosing a
copy of their Preferred Settlement Agreement that was filed with the FERC on June 16,
2005. Please review and incorporate it into the record with regard as an alternative to the
reir-aval of the Dillsboro Dam. This Preferred Settlement Agreement, along with the
iil~rrr~tion on instream flow needs that I have requested from the Division of Water
1Lt;ouees {copy of the request attached), should be made available for public review at the
brae that you consider Duke Power Comparry's application fora 401 permit for Dillsboro
or ally of the other projects in the Tuckasegee, Little Tennessee, Ocanulaftee, Nantahala,
err Iliwassee River systems.
'i'ris treferred Settlement Agreement must be included in your agency's deliberations in
e~~~~;r to have a complete record.
U~ i~~c~~ ely,
;~~//'
~~ ~
~~oi~n I3oaze,
~~;nior Hiologis~t
C,c vv/o enclosures:
~.ifi-ey G. Lineberger, P. E., Manager, Hydro Licensing, Duke Power
~.;n Westmoreland, Manager, Jackson County
~~ra Greenwood, Manager, Macon County
`J;riin Curtis, Councilman, Town of Franklin

__ ~_. ';UC OS~C ~_. '6?~JOb G~:44:~ P't~ DocY_et# P _'•~S-__~, ~`~ _~.
_~)~lui ' _, _ '~i ~ _ I'~ 21"11_ a

__ _ c~~~l~d F°RC OSEC 04/29/2605 04:35:00 PM Docket# P-2602-005, ET P.L.
Fish and Wildlife Associates, Inc.
`.i:~i+i l)l-(~icc pit: ~. ~, ~jpX 2~1 Tel [phone]
-'~ \~%~itcr ~l-~>~~~cr Lane Whittier, NC 28789 Fax [phone]
`~,~'l,;~ticr. \'C 25759 Email fwa(udnet.nct
April 29, 2005
\'Is. Ma~~ali~ R. Silas, Secretary
}= L [~ C
~1ail Cuc1c FIL-20
~~55 First St., N. p.
~i'~ishin~~ton, DC 20426
R(r: P-2002-007 Dillsboro Dam
P-2686- West Fork I-Iydro~lectric Project
1'-2698- East Fork Hydroelectric Project
Request for Clarification and Response to Agency Comments. Etc.
1}~•,ir ti1s. Silas:
C)n bchall~ol- .lacl<son County, North Carolina, Fish and Wildlife Associates, Inc. has
rc~'icwcd the U. S. Fish and Wildlife Service's March 18, 2005 letter filed in response to
the Commission's Notice of Application Ready for Environmental Analysis and
Sc~licitin~ Comments, Recommendations, Terms, and Conditions, and Prescriptions,
Dillsboro I Ivdroclectric Project, Jackson County, North Carolina (P-2602-007).
~Vc would appreciate receiving clarification of the following points in the Service's
ti~larch 15 Inter i^ order to better understand the Service's concerns and
I~~•Cl)I11menClatI011S:
1'<<<rc ~ Schcdule-
The Service is asking the Commission to order the decommissioning of the
Dillsbi~ro Dam as soon as possible to ensure endangered species recovery without
spcrilically identifying the species of concern. Does this refer to the Appalachian clktoc
(,Il~r.~~n~ic/on~cr ravenelicn~~r)? If so, it should be noted that the May 2002 report by TVA
f~~r the applicant reported that this species was already established above the dam. The
°~ppalachian clktoc has been there for at least eight (8) years as reported by the North
(~~u~olina Wildlife Resources Commission ou July 24, 1997 (copy attached). Thus, there
is no ni;ed 1-or recovery as the species of concern is already present. Moreover, as noted
in the record, the most significant factor limiting this species' population upstream of the
dam is the influence of cold water. The same cold water that would be allow to flow
do~a nstrcam upon the dam's removal, which would affect adversely the existing
~~opulation of ell<toc mussels located below the dam and further downstream. Again,
plca~c rc('erencc the attached material form NCWRC (1997).

~~ci ~'LPC OSEC 04/29/2005 04:35:00 PP~I Docket# P-2602-005; ET ~L.
'~1~.!~ ~ 5E?CCIf1C C0111111CritS-
The Service deeds to outline exactly what "additional baseline monitoring
i~ceds to be completed" will involve. Does this include a resurvey of the Tuckasagee
Ri~~er for mussels above and below the dam? The present study was conducted in May
~'UU?. Sen~ice protocols limit mussel surveys as only being good for two years and then
they have to be repeated. Also, the original shady did not cover the standard four (4j river
~~idth~ (l?~U-Feet) below the dam, but rather only 300 feet. Specifically, the previous
~~udv is outdated and did not comply with the Service's protocols then and now in effect.
In udditiun. the study area needs to extend one (1) river width (318 feet) above the
1 CSer~~l)Il~.
\~'hat usher ;ladies are being called for this section'?
As the Appalachian elktoc (Alasmidontn rcrve»elinr~n) is already present above
<<n~l below the dam, would not a study of the impact of the Coldwater releases from the
Thorpe po~~~crhouse be more appropriate in this section to define the limiting Factors For
talc upstream distribution of the elktoc above Dillsboro Dam. NC WRC has found
~~~pal~ichian elktoc mussels upsti-cam of Dillsboro Dam for 14.6 miles (pers. comm.
Chris 1~1cGrath, Nongame Bioligist, NC WRC). Thcrc is no struchue or obstruction of
i-hc ri~~cr that p1~o11ibits further upstream extension of this nnissel's range. Host fish
species exist Further upstream. Therefore cold water or some other physical/chemical
I~act~~r must be the limiting factor for the expansion of the mussel population.
The Service needs to outline exactly what °`detailed demolition plans must be
con~plcted" involves. Would this not include the 404-permit application to the Corps of
I.n~~inecrs'' Also, the concerns of the Corps of engineers as outlined in their October 9,
?(lu ~ to Duke's consultant and attached would need to be addressed. A copy of the Corps
~(1O ~ letter is attached.
"hhc Service needs to outline exactly what "adequate protection, enhancement,
and iuitigation measures, along with contingency actions, should he retired" entails.
The Service ^ceds to outline exactly what "an interagency consultation, as
~~cyuired hr the Endangered Species Act" would cover. As that consultation must
include the consideration of alternatives, the Service should define those alternatives as
includin~~ the slam staying in place with mitigation o'Ffcred off site (e~~., contribution to
ri~cr restorationidam removal projects elsewhere in North Carolina). The alternative
;liecilicd in the TCST agreement, ,augmented minimum flows and their impact upon
i~~cal electric rates, and should be assessed.
On iu1arch 1 1, 2005, the U. S. Fish and Wildlife Service filed COMMENTS,
f:000MNICNDATIONS, TERMS, AND CONDITIONS for the East Fork Hydroelectric
Project, FERC No. 2698-033 and West Fork Hydroelectric Project, FERC No. 2686-032.
iii bush of these documents, the Service stated that the "fish host" for the Appalachian
I~ll~:~o~~ ~.~~as not present in the Dillsboro Reservoir. However, at no time has the Service

. ;_ ? , ~d FLRC OSEC 04/29/2005 04:35:00 PM Docket# P-2602-005, ET ~L.
ur the .~~pplicant ever identified the "fish host". In the all of the documents tiled in these
rcli~~nsin~~ ~~roceedings of Dukes projects, it has remained the mystery ash. However,
r~sc~u~ch cunducted by the U. S. Geological Survey's Tennessee Tcch Cooporativc
l ish~r~~ Unit (a sister agency of the U. S. Fish and Wildlife Service)
~iurin~~ the summer of 2004, identified these "fish host[s]" as being present above the
[.~illsboro Dam. Ten species offish were found to host the Appalachian elktoe glochidia.
l~ urthermore, these data do not support either the Service's or the Applicant's position
rc~~ardin~~ the in~pediiuent of the Dillsboro Dam to the survival and reproduction of the
:Ap~rilachian clktoc.
~I~hc t~~llo~~~ing Table is from the ?004 Survey.
_ ,-_~~__~...~ ~c,.o,...c;c;,.., ~ C)rrurrence at Dillsboro Dam
.t~~~~~~ ..,,,,...,..,w ...,........._ .._.-~-
Above Dam at
Below Dam at ---- ._
In Reservoir
Fish species collected form the Little Tennessee River Station T-4 Station T-3 Station DR !
NC that contained enc sted Alasmidontaa raveneliana
~
~ Above Dam at Below dam _ !
_
.__
_
!c,iochidia '`
RM
At RM
_ j
- ;.
Banded darter Etheostoma zonale X X
IUVounded darter Etheostoma vulneratum X X III
jGreenfin darter Etheostoma chlorobranchium X X
I- ~-
i-I a,~rine darter
Percina aurantiaca
X
X ~
~~
-{
_
l~lottled sculpin Cottus bairdi X X _
Black redhorse Moxostoma du uesnei X X X
liver redhorse
'~Sicklefin redhorse
~iNorthem Ho sucker Moxostoma carinatum
Moxostoma s
H pentelium ni ricans X

X X

X _,
_:
X
~
~U'Varpaint shiner
i--
Luxilus cocco enis
X X

-~
- -
I=istr were collected from the Tuckase ee River NC on I
___.~
-- ---
'>t;,orii 21, 2004 and used for laborator induced
jlrifestations of Alasmidonta raveneliana lochidia`
~
- II
~ _ ,'I
~
--
'Gilt darter _ Percina evides X X I
:'Banded darter Etheostoma zonale X X _-___',
'UVounded darter' Etheostoma vulneratum X X ____ __ ____.,
Greenfin darter' Etheostoma chlorobranchium X X
Greenside darter Etheostoma blennioides X X _____._ ,
-- --
iOlive darter
Percina s uamata
X
r -
'
'I~.%Iottled sculpin
Cottus bairdi
X
X

- -__
~
_
_
Roa~, bass Am to lites ru estris X X x
'
_ .
----
River chub` Mocomis micropogon x X ! X

' __ ~~~ed FEP.C OSEC 04/29/2005 04:35:00 PM Docket# P-2602-005, ET AL.

'~fvorthem ho sucker'
',Central stoneroller`
H pentelium ni ricans
Cam ostoma anomalum
X
X i i
X
X
X

'Long nose dace'
Rhinichth s cataractae
X
X _
IRosyside dace` Clinostoma funduloides i -.
P~.~lirror shiner Notro is s ectrunculus X X
Tennessee shiner Notro is leuciodus X X
~" i indicates that species that successfully transformed Alassomidonta raveneliana glochidia
` Dr Jim Layzer. Unit Leader, U. S. G. S. Coop. Fish Unit. TN Tech. University. Cookeville, TN. Unpublished data
from graduate student research.
+ The occurrence data was taken from the license application for the Dillsboro Dam Project, FERC-2602
"fhe ab~.we new aild tilted information provided herein shows that the species of concern
i~; ~ilrcadv present above t1~e Dillsboro Dam and that the host species, as determined in the
l enne5sec's Tech University study, is also present above the dam. With this inEormatioz~
nu~~ a~~ail~ible to the record, hLRC should not proceed with any action that would allow
the Oillsburu Dam to be removed as the stated basis therefore is illusionary.
'~~litig~ui~~n measures need to b~ addressed as to what will happen should the mussels that
.u~e rennn~eci do not thrive or the population downs stream of the rcn~oval area (e.g.
hel~~w the bridge)is impacted adversely by the dam's removal. Such impacts c,xceed the
n~~tiun ~f an incidciltal taking under the ESA. It is a good possibility that there could be
;~~~°er~~l hundred elktoc mussels within the potential zone of impact from the dam
ren~u~al.
lur~hern~urc. the Service should clarify it's position on allowing Duke Energy to say that
~he~ ~~ i l1 conduct a live (5) year study of the mussels downstream of Dillsboro Dam,
huu(d it be removed, and yet permit Duke Energy to only fund two (2) years of the
~~z~rk. is the Service going to fund, on behalf of Duke Energy, the other three (3) years of
Re~pectl-ull~~ Submitted,
Dish ~u~d ~Vildlihe Associates, Inc.
;~~-~ John Qoa
C~c: Ser~icc lists
P-? 61)?
P-266
['-?(i~)
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~.(_~_ ~V'il~llil~c IZcsourccs Commission News Releases
~y~...~
,~
,, -cu _ .c~t!~r >ort
~~Ca:3t+~$CIOi"i ~eC)IilitiC~
RALEIGH, N.C. (Nov. 20) -Biologists working in the Little
Tennessee River, home to what until recently was the healthiest
hoGulafion of the endangered Appalachian elktoe mussel, are
noting a seemingly inexplicable and dramatic decline in the
pOpUB(IOn.
Biologists with the N.C. Wildlife Resources Commission have
been surveying mussels in the Little Tennessee River between
n~c to~^ ~ ~ of Franklin and Fontana Reservoir for the past two
~~ ors <~, part of a mussel reproduction study. During that time,
rne~/ve noted along-term decline in the number of Appalachian
elktoe mussels and an acute die-off.
~~ICs baffling," said Steve Fraley, an aquatic biologist with the
urnn,~ pion "In a relatively short time, they've gone from being
I iirly abundant to relatively rare at the majority of our monitoring
altos.
For eve,y hour biologists spent looking for the mussels in 2004,
they found 6 1 elktoes. In 2006, that number was down to 0.8.
Some of the decline may be explained by mortality directly
connected with the flooding from tropical storms Frances and
Ivan; bu, srnce then, biologists have noted a continued decline.
To confound the issue further, populations of five other mussel
species sr.,rvcyed in the same area at the same time appear
stable ovi r the san~ie period, despite the tropical storms.
~ h« rr i ~ o obvious reason for the decline, though at this point
uwl~yiats 3ren t ruling out anything -disease, parasites, toxins
u si,essuis could have weakened mussels to the point that they
saccumbed to something that typically isn't a problem.
II really is a sad situation," said John Fridell, the U.S. Fish &
Vvildlife Service biologist who listed the mussel as endangered in
1954. "I he Appalachian elktoe had been making strides across
tine region,. then Frances and Ivan struck, which negated some
of il-~osc gains Now we see this degree of a decline in what only
~, few years ago was the healthiest, most numerous population."
This past vrinter, biologists noted an acute die-off of mussels.
Tiris prompted them to send tissue samples to the U.S.
Geological Survey and Virginia Polytechnic Institute looking for
pall-~oger~s and parasites, but results were inconclusive. As
ruussel populations have continued to decline over the past few
months, biologists may conduct further pathological and
to: icological analyses.
1-he Appalachian elktoe (Alasmidonta raveneliana) was federally
listed as endangered in 1994. Today, there are seven known
f~opulatiuns: in the Upper Nolichucky River basin of Mitchell and
Yancey counties. the Mills River in Henderson County, the Little
river u,~ ~fransylvania County, the West Fork Pigeon and Pigeon
~~ivers .n Haywood County, the Tuckasegee River in Jackson and
S~;viin cuunues, the Cheoah River in Graham County and the
~~~ttle Tr,nnessce River rn Macon County.

_. ~ a..
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Biologists gather data from f~ppaiacrrian r_~ik.ioe
mussels.
-- ~.,, ~-~ ~ ~ ' , t ~ ~
~!,&b, ~ a
t~a~,. ,.
--.-
r,
Dead and dying Appalachian elktoe mussels
collected from the Little Tenressee Oliver.
MEDIA: Hi-res versions of 117esi: images m-ay ~u-; d ~ vn!~~ ~ k;d het e
Please credit the N.C. Wildlife Resource Commission.
li ru-soura~s are available, biologists hope to conduct a detailed review of existing water quality data and increase water quality
nruniionnq on the Little Tennessee River, looking for any anomalies or trends that may be linked to the decline.
Paee 1 of

1titE~. ~~~~~~~~ n~~~il~llif~e.org/news_stories/pg00_NewsRelease/pg00_nov06_7.htm ~/l ;i2U07

\_~'. ~~'il~llil~c Rcsaurccs Commission Nc~,vs Releases
Pfl~~C ~ Uf
The Lille ?eonessee River begins in North Georgia, flows north and then west across North Carolina, before flowing into the
~~ a~rnessee Rider. In 2004. it was the site of a conservation milestone as numerous partners came together to purchase 4.500
acres slreJ!iin ,g the river below the town of Franklin, the so-called °Needmore Tract." This move was seen as a huge step toward
p~vteciinq the quality of ti,e Little Tennessee River, which in turn, helps ensure the success of the Appalachian elktoe nnissel.
Return to Top
R~~b_,rn to fJev:,siPress F_,le~ls
NC Wilrtliir Horne
iut~~~ ~.~,,~~ u~~~ilclli(~.ar~~ncws_statics;p~~UU_Nc~~~slZclcasc;p~0O_nov0~_%.htn_t ti I ~ _'Ou?