Leaders of the Jackson County struggle with Duke Power are urging private residents, clubs and local governments to unite in compelling Duke to provide greater recreation and environmental benefits to the region.

The Jackson County leaders claim Duke is shortchanging the region by not providing adequate compensation in exchange for harnessing WNC’s rivers for hydropower.

Duke Power has seven dams on the Tuckasegee River in Jackson County as well as dams on the Nantahala, Oconaluftee and Little Tennessee rivers. Duke’s permits to operate the dams expire soon, and in order to get new 30-year permits, the company must mitigate for damming up the rivers and diverting them through pipelines.

The Federal Energy Regulatory Commission in D.C. has final say over what will be required from Duke. Paul Nolan, a D.C.-area attorney hired by Jackson County, said people can help Jackson County’s chances of getting more out of Duke — such as the creation of a greenway along the Tuckasegee — by filing public comments with FERC.

“Everyone in Jackson County should be encouraged to intervene in the process,” Nolan said, citing public ownership of the Tuckasegee River.

Nolan said Duke has propagated a false assumption that some groups are barred from filing comments with FERC if they were involved in the three-year stakeholder process that preceded Duke’s relicensing proposal. That process, initiated by Duke, brought together fishermen, kayakers, environmentalists, lake homeowners, town boards and other special-interest groups for input into a proposed mitigation package.

Participants had two choices in the end: they could accept the plan and sign an agreement promising not to oppose Duke; or they could reject the plan and appeal to FERC for more mitigation but risk losing concessions Duke had already made.

“What we were told and what I understood is that if I signed, I waived my rights to file for intervention or comment,” said Ken Westmoreland, Jackson County Manager. The county did not sign.

It turns, out, however, that those who signed can file as interveners, after all.

“As far as our process is concerned, anyone can intervene in any of the proceedings regardless of their settlement status,” said Celeste Miller, a spokesperson with FERC. Miller said she “couldn’t imagine anyone would sign” a document forgoing their right to file as an intervener.

Duke Power spokesman Fred Alexander agreed that those who signed the settlement agreement can file as interveners. They are limited to either a positive or neutral stance, however, and cannot say anything negative about the settlement agreement.

“Intervention in opposition to FERC issuing a new license that is consistent with the settlement agreement could potentially violate the agreement,” Alexander stated in a written response to questions. Alexander stated that the settlement agreements are binding contracts, and that “Duke Power will take appropriate action to ensure the implementation of these contracts.”

Westmoreland said members of an ogranization can file as interveners, regardless of whether the head of their organization signed. Westmoreland cited members of Trout Unlimited who are displeased with the settlement agreement. They can file as interveners regardless of their group’s formal position, Westmoreland said. The same goes for individual members of the Dillsboro town board, who could file opposition to the mitigation plan despite the board as an entity signing the agreement.

Nolan said those who don’t file as interveners now — if only with a neutral stance as an “interested party” — are giving up their rights down the road.

“What if the license issued by FERC comes out different than the settlement agreement said it was supposed to? You have no right to challenge it if you didn’t already file as an intervener,” Nolan said. This set-up is particularly problematic given the Dillsboro dam timeline, Nolan said.

The cornerstone of Duke’s mitigation plan is to remove the Dillsboro dam. It will take FERC a year or more to determine whether dam removal is feasible. FERC will not begin that process until Duke files an application to “surrender” the dam, and Duke has not yet done so.

So by the time FERC rules on the Dillsboro dam removal, the relicensing process for the other dams will be nearly complete. Those who have not already filed as interveners will have no legal standing in drafting an alternate mitigation plan should the removal of the Dillsboro dam not go through.

“If it was me, I’d be doing everything I could to preserve my rights,” said Tom Massie with the Jackson Soil and Water Conservation District, which has filed as interveners.

Westmoreland said even those who signed should have the right to object to components of the mitigation plan that have recently come to light. For example, those who agree with the Dillsboro dam revmoal might not like Duke’s method of removal, where all the sediment behind the dam will be flushed downstream rather than dredged, Westmoreland said.

“The whole settlement document was really quite vague. We should have the latitude to change our position, as should other people, as new information comes to light,” Westmoreland said.

Nolan said Duke is using the Dillsboro Dam to distract the public from the relicensing of its other dams.

“The way these proceedings are being pancaked and layered on top of each other, it is going to present a challenge for anyone to keep up with, including FERC,” Nolan said.