20030179 Ver 6_Public Comments_20071026 (2)

Dillsboro Dam removal 401 comments
Subject: Dillsboro Dam remova1401 comments
From: "Andrew Auld" <[e-mail]>
Date: Fri, 26 Oct 2007 15:51:54 GMT
To: [e-mail]
Dear Mr. Dorney:
We appreciate the opportunity to submit comments on behalf of the Dillsboro Inn in the
matter of the 401 Water Quality certification for the removal of the Dillsboro Dam and
Power House, DWQ Project #2003-0179 Ver. 6
Attached please find our comments filed in the above referenced matter. Signed,
hard-copy to follow by mail.
- thank you -
Andrew H. Auld
[e-mail]
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Andrew H. Auld
Environmental Technical Support Services
P.O. Box 96; Indian Rocks Beach, FL 33785
[phone] (v)
(727-596-0080 (f7
25 October 2007
Via entail and Express Mail Service
Mr. Steve Tedder
c/o Mr. John Dorney
NC Division of Water Quality
Parkview Building
Wetlands Unit
2321 Crabtree Blvd
Raleigh NC 27604
RE: 401 WATER QUALITY CERTIFICATION FOR THE ISSUANCE OF
COMBINED PERMIT 401 CERTIFICATION/404 DREDGE AND FILL
PERMIT FOR REMOVAL OF THE DILLSBORO DAM AND
POWERHOUSE, JACKSON COUNTY, NORTH CAROLINA -DWQ
Project #2003-0179, Ver. 6
Dear Mr. Tedder:
I represent Mr. T.J. Walker and the Dillsboro Inn in the above-referenced matter
presently before the North Carolina Division of Water Quality (DWQ) for
consideration. We appreciate the opportunity provided to submit these
comments subsequent to being given the opportunity to speak at the hearing
held in Cullowee on 25 September of this year.
Mr. Walker's interests and standing in the instant proceedings stem from his
status as resident and immediate downstream riparian landowner, and also as
principal owner and operator of The Dillsboro Inn. The Dillsboro Inn is a going
concern, which represents Mr. Walker's sole employment and means of support
for his family and is intimately connected to the Tuckasegee River environment at
Dillsboro. (Exhibit 1 -Dillsboro Inn Brochure/description photos)

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As DWQ outlined at the 25 September Public Hearing, DWQ review of the
proposed dam removal, and any subsequent issuance or denial of 401
Certification pursuant to the requirements of Sections 401 and 404 of the Clean
Water Act and its amendments for this action. is regulated pursuant to 15A
NCAC 02H .0506, which states in part:
(b) The Director shall issue a certification upon determining that existing
uses are not removed or degraded by a discharge to classified surface
waters for an activity which:
(1) has no practical alternative under the criteria outlined in
Paragraph (f) of this Rule;
(2) will minimize adverse impacts to the surface waters based
on consideration of existing topography, vegetation, fish and wildlife
resources; and hydrological conditions under the criteria outlined in
Paragraph (g) of this Rule;
(3) does not result in the degradation of groundwaters or surface
waters;
(4) does not result in cumulative impacts, based upon past or
reasonably anticipated future impacts, that cause or will cause a
violation of downstream water quality standards;
(5) provides for protection of downstream water quality
standards through the use of on-site stormwater control measures;
and
(6) provides for replacement of existing uses through mitigation
as described at Subparagraphs (h)(1) of this Rule.
DWQ status as signatory to the Stakeholder Settlement agreement does not
relieve the Division of its regulatory responsibilities under the North Carolina
Administrative Code and pursuant to the Clean Water Act.
Clearly the action proposed here by the applicant fails in numerous ways on each
of the above-referenced review criteria as identified by the regulation. Some of
the most egregious of these include the following:
Criteria 1: That there exists no practical available alternative. Stated simply
there are at least two viable and immediately available alternatives:
a. no-action alternative, which would leave the dam in-place without
generation (which could provide compensatory mitigation going
forward to allow either fish passage or recreational access, or both)
b. relicensing the project, leaving the dam in-place and resuming the
operation of Dillsboro Power Project as under the previous FERC
License, again either with or without mitigation to provide fish passage

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and/or recreational access
Either of the two alternatives outlined above have the following immediate and
long-term advantages:
leaves in-place existing habitat and water quality conditions
supportive of critical habitat of the listed endangered Elktoe
mussel
preserves the property of existing landowners
preserves and enhances existing uses by the restoration of the
project to provide useful renewable hydroelectric power by the
restoration of the project to generation as previously licensed,
with the provision of fish passage and kayak portage facilities
(as envisioned in the Stakeholder Settlement Agreement).
The clear advantage to both of the above alternatives is that neither one
would affect the status quo with respect to either water quality or the
designated critical habitat of the endangered Appalachian Elktoe
mussel. Consideration of such alternatives is consistent with the
responsibilities of DWQ in issuing 401 certification in other licensing
proceedings, which also should apply in any dam and powerhouse removal.
The review process that DWQ uses as outlined in the 401 Water Quality
Certification rules (15A NCAC 2H .0500) generally follows 404(b)(1)
guidelines. These guidelines: 1) avoid impact where possible, then 2)
minimize impact to the maximum extent practical, and finally 3) mitigate for
any unavoidable impact.
The fact that such obvious alternatives were not adequately studied, nor even
proposed , by the applicant does not alleviate DWQ from the obligation to
consider them. This primary principle is central to environmental impact
analysis, and established in both law and regulation in particular as it relates
to Section 401 /404 permit actions:
Section 404(b)(1) regulations provide that "no discharge of dredged or fill
material shall be permitted unless appropriate and practicable steps have
been taken which will minimize potential adverse impacts of the discharge on
the aquatic ecosystem." 40 C.F.R. § 230.10(d). Regulation further generally
prohibits permitting projects where these exists "a practicable alternative to
the proposed discharge which would have less adverse impact on the aquatic
ecosystem" 40 C.F.R. § 230.10(a); 33 C.F.R. § 320.4(a)(2)(ii).
In addition, ACOE public interest review procedures requires the Corps to
consider practicable alternatives: "the practicability of using reasonable

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alternative locations and methods to accomplish the objective of the proposed
structure or work." 33 C.F.R. 325.4(a)(1)(C). To be "practicable," an
alternative must be "available and capable of being done after taking into
consideration cost, existing technology; and logistics in light of overall project
purposes." 40 C.F.R. § 230.10(a)(2); 33 C.F.R. § 325, Appendix B (9)(b)(5).
Quite clearly, the alternatives proposed here would both employ reasonable
alternative methods (establishment of fish passage and recreational access),
and represent available, existing, cost-effective technologies.
Dillsboro Dam and reservoir provides and protects the water quality and
physical stream morphology and sediment control critical to the protection of
designated Critical Habitat of the federally-listed endangered Appalachian
Elktoe mussel. (67 FR 61 01 6-61 040), and a demonstrated existing population
of that mussel immediately downstream to the dam. The simple fact of the
presence of this population represents demonstrable and incontrovertible
evidence of that fact.
The USFWLS designation of critical habitat states:
the primary constituent elements essential for the
conservation of the Appalachian elktoe are:
1. Permanent, flowing, cool, clean water;
2. Geomorphically stable stream channels and banks;
3. Pool, riffle, and run sequences within the channel;
4. Stable sand, gravel, cobble, and boulder or bedrock
substrates with no more than low amounts of fine sediment;
5. Moderate to high stream gradient;
6. Periodic natural flooding; and
7. Fish hosts, with adequate living, foraging, and spawning
areas for them.
The actions proposed here would change, modify, or impact all seven of the
above adversely, and place at risk a viable, existing population of Elktoe, not
to mention other mussel resources.
The Applicant in this case is using data collected in a 2002 mussel survey to
support the proposed translocation of a small number of Elktoe mussels

upstream, while proposing to pass an unknown and undocumented amount of
sediments, both fine and coarse-grained, for an indeterminate time, over
existing, documented habitat for this endangered species.
,~
The survey upon which this proposed action is based is clearly dated and
furthermore does not meet minimum US FWLS criteria for endangered
mussel distribution surveys in areas of impact.
The Dillsboro Dam is 310-feet wide. Fish and Wildlife Service's minimum
study criteria call for surveys to be performed for at least four times the
stream width. Applying this criteria, Duke should have inventoried at least
1240-feet downstream of the dam. In reality, with the proposed release of an
unknown amount of sediment onto the mussel population, the survey should
have extended to Bryson City or Fontana Reservoir -the entire length of the
impacted stream as this area all represents designated critical habitat under
the Endangered Species Act.
Finally, the Fish and Wildlife Service does not accept endangered species
surveys of an area that are more than two (2) years old. As the Duke study
was done in 2002, the results are void.
The Fish and Wildlife Service reported in their Final Rule listing the Elktoe as
endangered (50 CFR Part 17, RIN 1418-AB97, November 23, 1994) that
siltation had been documented to adversely affect native freshwater mussels
both directly and indirectly. Ellis (1936) found that less than one (1) inch of
sediment deposition causes high mortality in most mussel species, and
sediment accumulations which are less than that demonstrated to be lethal to
adults are likely to adversely affect or prevent recruitment of juvenile mussels
into the population.
The question of endangered species aside, the proposed plan provides little
or no protections to the interests of downstream riparian property owners, in
particular those of the Dillsboro Inn, located immediately downstream of the
powerhouse.
Should the Department ignore the immediate adverse water quality and
endangered species impacts associated with dam removal, and allow the
Applicant's proposal to proceed, a third alternative -one that would leave the
powerhouse and tailrace areas largely intact -which would serve to protect
those interests long-term much better than the scenario described by the
applicant's dam removal narrative, should be considered.
Criteria 2: Minimize adverse impacts to surface water

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The action as proposed provides little or no protective measures to minimize
adverse impacts. Further, the Applicant's submittals and subsequent analysis
by both FERC and the USFWLS on the proposed action are based on
incomplete, out-of-date, and inadequate studies. (See attached Exhibit Table
1). Clearly it can be anticipated that the Department would require much
more on the part of another applicant, say The Dillsboro Inn, seeking a stream
disturbance permit for even a much less disruptive or invasive action on this
reach of the Tuckasegee.
Dredging of all accumulated sediments represents the sole course of action
that holds any potential to minimize downstream impacts from dam removal.
Estimates of impounded and sediment transport are out-of-date, incomplete,
and in error.
However even the selection of an alternative that would involve the removal of
the accumulated sediments would still adversely effect existing downstream
temperature regimes and dissolved oxygen concentrations to an extent likely
to destroy the demonstrated and designated critical habitat of the endangered
Appalachian Elktoe.
Criteria 3: That the action not result in degradation to groundwaters or
surface waters.
Clearly, as demonstrated by the presence of a viable, healthy and
reproducing Appalachian Elktoe population (67 FR 61 01 6-61 040 and
Applicant's Application), existing environmental and water quality conditions
support the continued presence and reproduction of a significant portion of
the remaining population of this endangered species in the Tuckasegee River.
The removal of the dam will result in immediate short-term impacts (sediment
discharge) that will require the translocation of this population. Studies
performed to-date are both dated and inadequate (See Criteria 1 above) to
describe the status and extent of distribution of this endangered population.
Further, translocation of unioids is an inexact and evolving science of
arguable success (see: P.W. Parmalee & A.E. Bogan -The Freshwater
Mussels of Tennessee, Knoxville, 1998, excerpt attached). Thus, any
issuance of a 401 Certification for the proposed action is based on a faulty
and deficient Biological Opinion (BO) and Incidental Take Permit.
Long-term impacts. Presently existing and utilized designated critical habitat
of the Elktoe Mussel will be irretrievably lost due to this action. The described
narrative for the removal of the dam leaves in-place unknown amounts of

coarse and fine-grained sediments that subsequently would move in waves of
silt and sandbars downstream as it erodes over the course of decades or
more of normal annual stream and floodwater discharge as regulated by
upstream power projects operated by the applicant. The effect of this would
be to continue to impact presently existing areas of mussel habitat and
downstream riparian owners.
Criteria 4: That the action not result in cumulative impacts
Clearly cumulative impacts will result from issuance of any 401 Certification
for the removal of the Dam at Dillsboro. This is demonstrated by the
Stakeholder's Settlement agreement, due to this project serving as the
principal mitigation for a flow regime that will be imposed on the Tuckasegee
by the issuance of 50-year licenses for the continued operation upstream
hydroelectric projects.
The operational flow regimes and water quality impacts imposed by those
projects at Dillsboro represent on-going and long-term cumulative impacts
that have not been considered by the application for this Water Quality
Certificate and include, but are not limited to, the following:
sediment transport
thermal changes imposed by operational flows
thermal regime changes imposed by the removal of the reservoir
Criteria 5: That the action be protective of downstream water quality
standards through stormwater controls.
This required criteria is also clearly not met, as removal of the dam will
change the existing thermal regime, dissolved oxygen concentrations and
distribution, and downstream nutrients distribution that is presently supportive
the critical habitat of an identified population of the endangered Appalachian
Elktoe mussel. Again, this population is of presently unknown size and
status.
In addition, the action clearly plans to discharge in excess of the estimated
100,000 tons of sediment to the Tuckasegee river, as opposed to the removal
and protection from this type of discharge that could easily be avoided
through the prior removal of all of the sediments in question.
This action as proposed (without the prior removal of all or a substantial
portion of the accumulated sediment) clearly is not the intent of the regulation,

and indeed, other riparian landowners and development interests elsewhere
in the basin and elsewhere in North Carolina have incurred significant fines
and imposed mitigation costs related to actions much less deliberate and of
much less magnitude than that that is being proposed here.
Criteria 6: That the action protects or replaces (mitigates) impacts to existing
uses.
While this criteria is designed to address primarily impacts to wetlands, it also
applies to stream mitigation. The applicant neither addressed nor proposed
mitigation for the following impacts:
• stream bank protection from erosion due to either long-term
operational or "flushing" flows
• impacts due to sedimentation to the federally designated critical
habitat of the Appalachian Elktoe
• impacts due to changes in the thermal regime of the Tuckasegee at
Dillsboro from
o loss of reservoir impoundment
0 operational flow regime and discharge of upstream projects
• impacts due to the loss of a significant winter refugia for local fish
populations of the Tuckasegee (Exhibit)
• impacts to downstream riparian interests
• impacts to business interests, including the Dillsboro Inn
In summary:
Based on each of the above-identified criteria, it is clearly inadvisable to issue a
Water Quality certificate in support of the removal of the Dillsboro Dam and
Reservoir. Such an action places a federally listed endangered species at risk,
irretrievably changes existing habitats and water quality, and results in the loss of
existing uses, including impairment of the rights and property of the immediate
downstream riparian landowners.
In this regard, DWQ's attention must include not only the Appalachian elktoe
mussel, but also other aquatic species of interest, such as the Littlewing
Pearlymussel and others. As noted in the mussel survey submitted as a part of
the applicant's September 29, 2004 submission of additional information in the
Dillsboro License surrender proceeding for P-2602-007, the projects in question
have an effect on a variety of mussel habitats, and the cumulative impacts of
these actions and the operation of these projects need to be considered in detail,
which has not been done.

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While Dam Removal constitutes a valid stream restoration technique, there are
occasions that it is neither the expedient nor the favored action. This clearly is
one of those cases. Several factors are missing from the benefit side of the
equation when arguing in favor of this action at Dillsboro. Some would be:
Lack of a benefiting migratory fish or other biotic population that is in any
way measurably adversely affected by the existence of the dam
Presence of a viable, reproducing population of a designated endangered
species, the Appalachian Elktoe
Existence of viable alternatives to dam removal from the standpoint of
ecology, fish passage, water quality, recreation and aesthetics.
It is clear that it is simply "inconvenient" in Duke's case to continue to maintain
and operate the Dillsboro facility, and Duke has engineered the Stakeholder
process to maximize upstream power production benefits at the expense of
downstream habitat and human resources.
In the event that the Department proceeds with the questionable action of issuing
a 401 Certification for a Joint Permit to allow the removal of the Dillsboro Dam, it
should at a minimum require:
1. an accurate and up-to-date survey describing the distribution and
status of the population of the endangered Elktoe mussel
downstream of the dam between Dillsboro and Bryson City
2. dredging of the Dillsboro impoundment and other upstream
impoundments to minimize sediment transport downstream while
the applicant attempts to translocate the Elktoe mussel upstream of
the Dillsboro reservoir - in this regard, it should be noted that the
applicant's relocation and monitoring proposals as presently
described are grossly inadequate and a minimum of 5-7 years
monitoring would be required to sufficiently demonstrate survival
and establish a reproductively viable population
3. the removal by dredging or other appropriate means of all
sediments from the historic stream channel and riverbank areas,
and subsequent armoring of the new re-established riverbank to
preclude downstream movement of any remaining materials, or
barring that,
4. an accurate and up-to-date survey and quantitative estimate by

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modern geophysical techniques of the materials behind the dam -
to include any and all natural and man-made materials.
I appreciate the opportunity to provide the Department with these comments on
behalf of Mr. T.J. Walker and The Dillsboro Inn. Please feel free to contact me
should you have any questions. I can be reached at tel. [phone].
Respectfully:
'~~`~.~-
Andrew H. Auld
Environmental Technical Support Services