20030179 Ver 6_Public Comments_20071024

Oct 24 07 03:32p Samuel S. Duffey, Esquire (9411 91$-2841 p.l
To: North Carolina Division of Water Quality
Attention: John Domey
From: Samuel Duffey
Date: October 24, 2007
This correspondence (which has been sent by email and by fax-919-733-6893)
serves as a formal follow-up and addendum to the comments that I made in person
at the September 25, 2007 Hearing (the "Hearing") convened by the North Carolina
Division of Water Quality ("DWQ").
Dam R4moval
The majority of the oral comments made at the Hearing were opposed to
the removal of the Dillsboro Dam in Jackson County, North Carolina (the "Dam").
These comments were made by residents interested in protecting North Carolina's
water quality in their area. I urge that the DWQ take the oral comments made by
interested citizens of Jackson County at the Hearing seriously and carefully consider
their merit. It might be easy for the DWQ to reach a conclusion that Duke Power
means well and that the input from state or federal employees on water quality
is sufficient, but the DWQ's role in the removal of the Dam is unique. The role of the
DWQ in the Dam removal issue is limited to protecting the quality of North Carolina's
water and trout habitat. Issues not related to water quality or trout habitat (such as
hydropower generation, costs to Duke, re-licensing of Duke Power by FREC) are not
relevant to the DWQ. The federal regulatory scheme for hydropower recognizes the
important responsibility vested in the DWQ by the citizens of North Carolina-the
DWQ is the "gate keeper" for the citizens of North Carolina to maintain the quality of
North Carolina's water consistent with the best interests and desires of the citizens of
the state. Perhaps the most important voice should be the residents of the area.
Many citizens testified that the Dam should remain and I agree. The removal of the
Dam will result in many adverse consequences with no identified water quality or
trout habitat improvements. The negatives include the increase in silt down stream
of the current Dam, the destruction of a historic landmark and the reduction of hydro
generating capability. The DWQ's mandate to protect water quality and trout habitat
requires that DWQ not permit the Dam to be removed if removal adversely impacts
water quality or trout habitat. Of course, to fulfill its responsibility DWQ must know
with reasonable certainty what the impact on water quality and trout habitat will be if
the Dam is removed.
As many interested citizens commented at the Hearing, this responsibility vested in
the DWQ has not been fulfilled and cannot be fulfilled until Duke Power is fully and
legally committed with regard to the removal of silt from behind the Dam before the
Dam is removed. It is clear that flushing down stream any of the silt built-up behind
the Dam will adversely impact water quality and trout habitat-any debate regarding
adverse impact is limited to how much will water quality and trout habitat be
damaged? or how long will the water quality and trout habitat be impaired? Duke
Power's proposal is ambiguous and open-ended allowing Duke Power to remove the
silt or, in their discretion, to flush an unlimited amount of silt down stream.
Apparently, Duke Power's decision as to how much silt they will choose to flush down
stream will depend on their arbitrary discretion and may be largely based on the cost
of silt removal and their ability to sell the silt for a profit.
OCT-24-2007 WED 15:31 TEL:[phone] NAME:DWQ-WETLANDS P. 1

bct 24 07 03:32p Samuel S. Duffey, Esquire [941) 918-2841 p.3
by such a quantity of water that will change the West Fork from a peaceful and small
river to a Class IV or Class V rapids. I urge that the DWQ fully and completely
examine the impact of such sporadic releases of enormous quantities of water on
both the water quality in the West Fork and the trout habitat in the West Fork.
I believe that it is undeniable that the proposed water releases wilt have obvious
negate impacts on both water quality and trout habitat and should be rejected by the
DWQ. Jackson County has gone to significant lengths to protect the banks and
vegetation along the West Fork by creating and enforcing a thirty (30) foot set back
along the West Fork. The Jackson County set back prevents any destruction,
alteration or removal of native vegetation within 30 feet of the river bank. The
obvious reason is to protect the bank from erosion, to protect water quality from slit
run-off into the West Fork during rains and to protect the vegetation overhang the
river which is necessary for healthy trout habitat. The Jackson County ordnance is
compelling evidence of the public importance to water quality and trout habitat of
maintaining the river bank and vegetation in a natural and undisturbed state. The
benefits of the Jackson County ordinance will be reversed by the recreational water
releases.
Citizens that observed the test recreational water releases conducted by Duke Power
have confirmed that the recreational water releases increased the natural flow in the
West fork by a factor of 10, that the water flow was outside of the river bank by in
some cases up to 30 feet and that the velocity of the water was equal to a Class IV
or Class V rapid. It is clear that such a violent change in water flow will destroy most
vegetation that currently holds the soil along the bank, will erode the bank and will
kill or knock down many trees that currently overhanging the West Fork. It is not
arguable that the water flow from the recreational water releases wil{ have a
significant negative impact on water quality and trout habitat. The negative impact
will include increased silt run-off into the West fork from rains which is currently
controlled by vegetation, erosion of the bank and loss of vegetation and trees that
provide the shading that protects the trout habitat. Additionally, the recreational
water releases are so large and violent that they will dramatically erode the river
banks which will destroying the natural condition of the banks which currently
constitute an important part of the trout habitat and which currently protects the
bank from further erosion and silt run-off.
The proposed recreational water releases wilE have an impact similar to rare rain
storms like the recent hurricanes. The citizens of North Carolina and the DWQ know
well the negative impact on water quality and trout habitat which results from the
occasional disastrous rain storm and there should be no confusion, the recreational
water releases will have a similar impact on water quality and trout habitat. There is
a big difference: the proposed recreational water releases are not the result of
uncontrollable acts of nature but rather are voluntary acts of man.
The DWQ is the "gate keeper" for assuring that the high quality North Carolina water
and trout habitat is maintained for all generations. DWQ's responsibility to the
citizens and future generations of Narth Carolina is made even more serious by the
reality that water quality and trout habitat once lost or compromised is frequently
gone forever. It would be a serious mistake for the DWQ to permanently compromise
the water quality and trout habituate of the West Fork in an effort to convert the
West Fork into a Class IV or Class V rapids for 8 days a year to accommodate the
occasional use by a very few kayakers.
OCT-24-2007 WED 15:32 TEL:[phone] NAME:DWQ-WETLANDS
P. 3

•Oct 24 07 03:32p Samuel S. Duffey, Esquire (9411 918-2841 p.4
Since
Sa'm~l Duffey
Owner of Lot 79
Forest, Glenville, North Carolina
nrT-as-anr~ t.~Fn ~~:~~ TEL:[phone] NAME:DWQ-WETLANDS P. 4