20030179 Ver 6_Public Comments_20071023

Dillsboro Dam and West Fork
Subject: Dillsboro Dam and West Fork
From: "Mike" <[e-mail]>
Date: Tue, 23 Oct 2007 23:27:53 -0400
To: <[e-mail]>
Dear John,
The Dillsboro Dam should remain in place. Many similar dams across the country are preserved
as Heritage Corridors (like Blackstone in RI); Western North Carolina should also be looking to
preserve some of these historical structures as examples of pioneering hydro power.
In addition to the visual and audio benefits, if Dillsboro Dam were returned back to the public in
the state in which it was originally leased (without being filled with silt), it could provide a green
energy source which would increase its attraction. The relicensing of all the Tuckasegee dams should
include some type of silt mitigation to insure the dams remain functional beyond the terms of Duke's
40 year lease agreement.
On October 23, 2007, Duke Energy's CEO, Jim Rogers told NPR's Marketplace that existing
facilities should be preserved and modernized to minimize the footprint of electricity generation. Here
is a golden opportunity for Duke to practice what they preach. [full story
http://marketplace.publicradio.org/display/web/2007/10/23/power conservation/]
The few mile stretch of water is unlikely to have any significant benefits in term of "restoration"
since the section is only a few miles below the next upstream dam. The isolation of a section of
stream could actually have a positive impact from invasive species like the Asian Karp reeking havoc
on rivers elsewhere.
I can not imagine another action that the NC DWQ would purposely approve devastating a creek
ecosystem with silt, and justify the action by assuming it will eventually get better. If this is standard
logic, then why no allow developers to put bulldozers in our streams? Something is wrong here.
The Dam actually produces a benefit to the whitewater outfitters below the dam as it provides
constant and predictable daily releases for local whitewater tourism. This dam would allow Duke to
better schedule the upper dam releases around peak power needs verses recreational whims which is
currently the plan. This inefficiency for the benefit of a few kayakers was not the intent of the
hydro-electric facility nor was it the reason many locals had their homes taken and flooded.
Economically, keeping a hydro power structure in the only rational choice. A similar dam would
be very expensive to rebuild in the future and with technology improvements in generators this dam
could become an efficient addition to our local power needs.
Finally, I have personally kayaked the Tuckasegee from Cullowee down to well below Dillsboro
with my girlfriend. The portage of the Dillsboro dam is part of the adventure and required little effort
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to haul gear around the dam. Lazy boaters should not be justification of the Dillsboro dam removal.
I also remain opposed to dam releases in the Tuckasegee West Fork gorge, because of private
property. Since, Navigability in-fact must exists under "natural and ordinary conditions" [United
States V Holt State Bank, 270 US 56], and under natural conditions the West Fork is a tiny stream, it
follows that the bed is completely in private ownership. The NC supreme court also stated "natural
conditions" are required for navigability in Gwathmey v. State Dept EHNR [464 S. E. 2d 674, 342 N. C.
287, (1995))
If there is any question to the ownership of the bed (navigability), FERC can simply review the
Jackson county land records where sections of the stream, just below the dam, were taken by eminent
domain at the time the dam was built. If this "submerged land" required purchasing, then the
waterway was considered non-navigable in its natural state and therefore not public trust lands.
The West Fork does dot meet the requirements as outlined in FERCs dismissal of AW's claims
elsewhere. Similar to the Nooksacks Falls Project [Docket no. JR02-1-001], the West Fork is a
difficult class III-IV stream and therefore not navigable by an average paddler. This was proven to be
true during the flow study.
Manipulating a waterway to accommodate kayaking does not alter the bed or bank ownership.
In US v. Cress, 243 U.S. 316 (1917), the court determined that flooding someone's property was in
fact a taking under the 5th amendment and that navigability only applies to the natural and ordinary
conditions of the stream, not the flooded conditions resulting from a dam. Banks and beds can not be
open to idle kayakers without just compensation; similarly someone's yard can be used to hold a circus
without the owners permission. In Parm v. Shumate U.S. Dist. LEXIS 61227 (2006), the court
determined that use of a river must be contained to the navigable channel and that public trust rights
do not extend to flooded lands.
Under North Carolina law, "the right of navigation gives no license to go and come through and over
the riparian owner's land without `let or hindrance.' Similarly, those navigating a river have no right,
as incident to the right of navigation, to land upon and use the bank at a place other than a public
landing without the consent of the owner, for the banks of a navigable stream are private property .
Gaither v. Albemarle Hospital, 235 N.C. 431, 444, 70 S.E.2d 680 (1952) (emphasis added).
Therefore, FERC can not establish a policy that would require kayakers following standard safety
protocol to trespass.
Scheduling recreational flows down the West Fork for the purpose of kayaking without mitigation
of trespassing onto the banks for scouting and portaging is illegal and unethical. This is like letting
hang-gliders jump off a cliff without any public landing site. The reality is that kayakers needs to
scout as witnessed during the trials, since the flows are well above the ordinary high-water mark, the
use of the banks can only be accomplished by trespassing.
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AW wrote to the USFS on September 13 of 2007 that "portaging was a part of kayaking". NC, like
in most states, consider landing of the banks trespassing. If the banks are needed they can be leased
or purchased from willing landowners. However, the use of the banks for foot traffic will likely create
erosion problems and diminish water quality. State and federal agencies are keenly aware of problems
associated with trampling riparian vegetation. including water quality, Increasing impact of these
banks that are highly susceptible to erosion does not benefit the aquatic habitat and general public.
Bank failures (on private property), diminished water quality and more silt behind the Bryson dam
will all be future litigation headaches for Duke, DWQ and FERC.
Finally, by not including the impact to private property the EA published by FERC is in violation of
Executive Order 12630 which mandates all government actions include a review of the impact an
action might have on private property. Trespassing was required during the flow trials and will likely
be required if large releases are allowed. Ignoring this repeated fact is clearly in violation of EO
12630.
For the reasons above, please do not proceed with the "plan" manipulated by the kayaking lobby for
there own selfish interests and consider the preservation of the Dillsboro dam.
Thank you for your time.
Mike Bamford
Jackson County , NC
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