Mitigation demand holds in Supreme Court

In a 9-0 vote last week, the Supreme Court upheld the right of states to demand mitigation from hydropower companies for the damming of rivers under the Clean Water Act.

The case was filed by a dam operator in Maine. The Maine dam operator claims the Clean Water Act should not apply to them since they don’t discharge pollutants into the river, but merely borrow the river and put it back again. In many cases, however, borrowing the river means that miles of the riverbed is reduced to a trickle while the water goes through a series of overhead pipes and powerhouses before making it back to the river again — as is the case with some of Duke Power’s dams on the Tuckaseegee.

Dams also impact water quality by holding and then releasing water, causing fluctuating river volumes and disrupting natural river ecosystems. As a result, power companies must compensate the public with environmental and recreational benefits in exchange for operating the dams.

With the Court's decision, the Clean Water Act will remain one of the key tools to help restore rivers for fish, wildlife, and paddlers on rivers impacted by hydropower dams, according to Thomas O'Keefe, a river ecologist with American Whitewater.

American Whitewater, a national paddling advocacy group headquartered in Sylva, took a leadership role in fighting the case along with the Hydropower Reform Coalition.

"This case clearly recognizes the impacts of hydropower dams on water quality and in their decision the Court specifically noted the importance of recreational opportunities,” O'Keefe said.

Congress passed the Clean Water Act to “restore and maintain” the integrity of waterways to achieve “water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water.”

The Clean Water Act has benefited numerous dammed rivers in WNC. For example, Progress Energy donates more than $300,000 annually to the Pigeon River Trust Fund for environmental projects in the Pigeon River watershed. Alcoa Power and Light donates $100,000 annually to an environmental trust fund to offset environmental impacts for its four dams, including on the Cheoah River in Graham County. Alcoa also placed 10,000 acres adjacent to the Great Smoky Mountains National Park in a conservation easement.

Currently there is controversy surrounding Duke Power’s proposed mitigation package for six dams on the Tuckasegee River. Duke’s proposed mitigation for the dams is to remove the Dillsboro dam to make up for the use of its other dams — mitigation it hopes will also count towards the Nantahala dam, Oconoluftee dam, Hiwasee Dam and Lake Emory dam. Many in region feel removing the Dillsboro dam is not enough mitigation. See the news section of this issue to read about an upcoming public hearing on Duke’s proposed mitigation.

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