Jackson, Macon and Swain counties could receive millions of dollars in cash from Duke Power through annual payments over the next 40 years under a draft proposal being considered by the boards of commissioners in each county and the town of Franklin.

The money would compensate the counties for Duke’s use of public rivers — namely the Tuckasegee, Nantahala, Oconaluftee and Little Tennessee — to generate profitable hydropower. The money could be used for sediment and erosion control, greenways, lakeside parks — even training and equipment for rescue personnel who respond to lake and river accidents.

Duke’s permits to operate 11 dams in the region are expiring. To get new permits, a process that rolls around only every 30 to 40 years, Duke must provide mitigation in exchange for manipulating the public’s rivers for a profitable hydropower operation. Duke spent three years negotiating with various stakeholders in the region — from kayakers and fishermen to lake homeowners and local government — to hammer out a mitigation package.

A dollar value on Duke’s proposed mitigation package was “several million dollars,” according to Duke spokesperson Fred Alexander, reported by Duke at one time as $6.5 million. That dollar figure includes in-kind contributions, such as a Duke employee writing grants for the town of Dillsboro, the lease of land Duke already owns for construction of boat put-ins, and the loss of revenue from putting more water in the riverbed for aquatic habitat and running less through the power houses.

“When you compare that to the roughly $1 billion Duke Power will gross over the life of the license, it’s not so much, is it?” said Bill Lyons, a Jackson resident and member of Western Carolina Alliance environmental group. “Duke’s $6.5 million in mitigation is a joke.”

The draft proposal being considered by Jackson County is many times higher. It is more in line with the mitigation Haywood County received for a single Progress Energy dam on the Pigeon River, amounting to about $100 million in cash over 30 years.

“For some time Jackson County has said we know we aren’t getting a good enough deal. So what is a good deal? What are the things we need to do associated with these hydros?” asked Paul Nolan, a D.C. attorney who specializes in hydropower issues hired by Jackson County to represent them in dealings with Duke.

In addition to a lot more money, it removes ambiguity on exactly what is required of Duke. Duke’s mitigation package is filled with phrases like “if it is deemed necessary” tagged onto pledges of mitigation. Where funds are provided to the counties, Duke gives itself authority over how they are spent. It also sets a 15-year time limit for Duke to comply with several elememts of the promised mitigation.

That leaves too many loopholes, Nolan said.

“A lot of people cut a deal, make an announcement, take a hand-shake picture, and 15 years from now you are like, ‘Weren’t we supposed to get a park bench and a sign with a pamphlet? Where is it?” Nolan said.

In that scenario, the responsibility would fall on the county to file an appeal with FERC to force Duke to do what it promised. Under the new proposal, however, a clause automatically forces review every five years to determine whether Duke is complying with the terms of the mitigation package, at Duke’s expense.

“What we are really trying to do here is say, ‘we want certainty,’” Nolan said.

Pot luck

In addition to Jackson, Macon and Swain counties and the town of Franklin, other parties also unhappy with Duke’s proposed mitigation might all sign on to the alternative plan, including Friends of Lake Glenville, the Western North Carolina Alliance, the Watershed Association for the Tuckasegee River, the Jackson County Soil and Water Conservation District and others.

Andrew Fahlund, a national hydropower expert with American Rivers, said he does not know how FERC will weigh the alternative mitigation package signed by a coalition of opposing parties compared to Duke’s preferred package, also signed by various supporting parties.

“I think this is the first time I’ve heard of something like this happening before, although it doesn’t sound unreasonable to me whatsoever,” Fahlund said. “It is an alternative FERC will have to consider. Whether it stands any chance, I can’t really say one way or another, but I can say it is unusual, but a perfectly reasonable thing to do.”

John Boaze, a biologist with Fish and Wildlife Associates in Whittier, said he thinks the proposal has a good chance.

“In light of the fact that I think the removal of the Dillsboro dam is a dead issue, I think it will be looked upon favorably. In my opinion Duke needs to come back to the negotiation table. When your number one horse dies, you better have another one to ride,” said Boaze.

Boaze said removing the Dillsboro Dam, the centerpiece of Duke’s mitigation, has lost its unconditional support from the U.S. Fish and Wildlife Service, a federal agency that initially signed on to Duke’s plan to tear out the dam. The Army Corps of Engineers is also scrutinizing dam removal and would have to sign off on it, Boaze said.

Potential to lose

Swain County paddler Bunny Johns, who served as an advisor to Duke during the three-year mitigation negotiations on recreation needs, said the alternative plan could jeopardize the concessions rafters, kayakers, fishermen and others fought for during the three-year process.

“Unfortunately, if the dam does not come out, it all goes back on the table,” Johns said. “It potentially affects everything. The resource values would have to be renegotiated, and who knows what they would do to recreational water releases.”

Duke would not comment on the specific elements called for in the draft plan.

“Until we see the final document and all relevant attachments, it would not be appropriate to comment in detail,” Fred Alexander, district manager of Duke Power Nantahala Area, stated in an email response to questions. “We believe that the Nantahala and Tuckasegee Settlement Agreements signed in October 2003 by the company and various state and federal agencies, the Town of Dillsboro, Town of Sylva, local outfitters, and others is more broadly based.”