20030179 Ver 6_More Info Received_20090403

P45 Enerya
Carolinas
April 3, 2009
Kimberly D. Bose, Secretary
Federal Energy Regulatory Commission
888 First Street, N.E.
Washington, DC 20426
Subject: Dillsboro Hydroelectric Project (FERC 4 2602)
Update on Dam and Powerhouse Removal
Dear Secretary Bose:
HYDRO STRATEGY & LICENSING
Duke Energy Carolinas, LLC
EC12Y/526 South Church Sheet
Charlotte, NC 28202-1802
Mailing Address:
EC12Y/P.O. Box 1006
Charlotte, NC 28201-1006
On July 19, 2007, the Commission approved an Order Accepting Surrender and Dismissing
Application for Subsequent License ("Surrender Order") for the above project which was later
amended on April 22, 2008. In this Surrender Order, the Commission established conditions
under which Duke Energy ("Duke") would remove the Dillsboro Dam and Powerhouse by July
19, 2010. In addition, the Surrender Order also required the removal of 70,000 cubic yards of
sediment from the Dillsboro impoundment prior to dam and powerhouse removal as specified in
the 401 Water Quality Certification with Additional Conditions (November 21, 2007) issued by
the North Carolina Department of Environment and Natural Resources, Division of Water
Quality.
To remove the required sediment in preparation for dam removal and to cooperate with Jackson
County ("the County") in a good faith effort to follow all local ordinances, Duke applied for a
Land Development Compliance Permit and a Floodplain Development Permit as instructed by
the County. However, the County has objected to the removal of this dam and powerhouse, and
has contested the validity of the issued 401 Water Quality Certification for their removal. Thus,
the County has delayed issuance (for more than seven months) of the above permits which the
County (but not Duke) believes are needed to initiate sediment removal. This delay prompted
Duke to file a complaint against the County to obtain the local permits which the County
believes are needed so that sediment removal could proceed while a decision on the validity of
the 401 Water Quality Certification and dam removal is being adjudicated.
On March 23, 2009, the Jackson County Superior Court ordered (attached) the County to issue
the permits to Duke. To date, the County has not complied with this Order and has until May 1,
2009, to appeal this Order or issue the permits. Because of the delay in initiating sediment
removal from the Dillsboro impoundment, Duke has been forced to delay the initiation of
Secretary Kimberly Bose
Page 2
demolition and removal of the Dillsboro Dam and Powerhouse from January 2009 as originally
planned to January 2010.
Please note that Duke has completed or will have completed by the end of 2009 all pre-dam
removal studies and is currently preparing the final draft of the Dam Demolition Plan required by
the Surrender Order. The Dam Demolition Plan will be submitted to the Commission within the
next few weeks. At this time, dam demolition is expected to start on January 2, 2010, provided
Duke can remove the 70,000 cubic yards of sediment from the impoundment prior to this date.
Please direct your staff to contact Hugh Barwick at 704.382.0805 or dhbarwic@duke-
energy.com should they have any questions regarding this matter.
Sincerely,
Jeffrey G. Lineberger, P.E.
Director, Hydro Strategy and Licensing
Enclosure: Jackson County Superior Court Order
cc: Director, D2S1-FERC
Chris Goudreau, NCWRC
Dave McHenry, NCWRC
Mark Cantrell, USFWS
John Dorney, NCDENR-DWQ
04/01/2006 14:05 FAX [phone] CLERKOFCOURT IM004/004
FROM X&L GATES (MON) 3.23' 09 11; 3' '"7. 11; 32/N0. 4864123295 P %/
?. Or-?
YI*AI'U Oil NOKfH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF JACKSON 09-CVS-09
DUKB liNERGY CAROLINAS, LLC, )
Plaintiff, )
V. )
JACKSON COUN'TY, a political )
subdivision of the State of North Carolina, ) ORDER
and LINDA CABIA in her official )
capacity as Planning Dirocwr of Jackson )
County.
l?cfendaMS. ) ? '?
(n A rr
'1'1115 MATTER came on for teasing at the Minh 1G, 2009 seasioa of J'ackscd Covttty
Superior Court before The Honorable Latina J. 8dd^ Superior Court Judge Prceiding, on
Plaintilra motion fbr Partial Summary Judgment and Defudatsts' Motion to Dismiss, both flied
March 6, 2009, plaintiff and Defendants each appealed through cowmel. Having reviewed and
considered the pletadinp, the aflidavim anti other doeuawts which have been filed with or
presented to the Court; On briefs and logal authorities submitted by counsel fir all parties; and
the oral arguments of counsel for all parries, the Court finds that is has subject matter jurisdiction
of the claims asserted in Plaintiff' Complaint, there is no genuine issue as to any material fact,
and that Plaintiff iA entitled to judgment as a matter .of law to the relief requested in its Motion
for Partial Summary Judamartr,
1'1' is n iiE'REFORL ORDMW, ADJUDGED AND DWREED:
1, That Defendants' Motion to Diatnin against Plainti$'is DUNIED;
04/01/2009 14:05 FAX [phone] CLERKOFCOURT IM 003/004
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2. That Plaintilrs Motion fbr Partial Summary Judgment is GRANTED; and
3. That Judgment is hereby entered in favor of Plaintiffr and against Defendants as
follows:
N. Plafodfl's requax for a Writ of Mandamus is CiRANI-PI). and
Defendants are hereby ordered to itrtmediatoly process and issue
the 1,and Development Compliance Permit that Plalntiff applied
for on or about August 1, 2008 (attached as Exhibit 4 to the
Deposition of I.Inda Cable, which is in the record of this cam), and
the Floodplain Nveloprnent permit ttst Peintiff applied for on or
about November 25, 2008 (attached as Exhibit 6 m the Deposition
of' Linda Cable), for sediment removal operations at DUlsboro
Reservoir that Plaintiff is required to complete as a result of the
Federal Energy Regulatory Commission ("FERC") Orders
referenced in Plaintifrs Motion for Partial Summary Judgment;
and
1+. Pursuant to N.C. Ciea. Slat. § 1.253, at seq., the Court hereby
declares t'Itelt, due to the preemptive nature of the Federal Power
Act ("FPA"), Dafendonte are without authority to deny PlaintiMthe
Land Development Compliance Permit or Floodplain Developnient
Permit rellsveoed above, or to require Plaintiff to seek and obtain
other local permiq affecting the Dillsboro Reservoir wdiment
removal operadons, inasmuch as the FBRC'9 Orders with respect
tv sediment ranoval were issued pursuant to the }PA.
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04/01/2008 14:05 FAX [phone] CIERKOFCOURT IM002/004
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this t!•e' ,, day vF ?? . 2009.
% .
HQD*Mbk lAft& J. BZWSCS
Supatiw Court Judge Presiding
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