Duke could owe tribe Oconaluftee dam profits

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Duke could owe tribe Oconaluftee dam profits

The Bureau of Indian Affairs is questioning whether Duke Power concealed the boundary of its hydropower operation on the Oconaluftee River to avoid sharing a portion of its profits with the Eastern Band of Cherokee Indians.

Under the Federal Power Act, a tribe is entitled to a portion of the profits from a hydropower project if part of the operation lies on tribal lands. According to a map belatedly provided by Duke Power last month, part of the Oconaluftee River hydropower operation in Ela appears to extend onto tribal lands.

Duke Power’s permit to operate the Oconaluftee dam is about to expire. Duke applied for a new permit three years ago, but failed to provide an adequate map of the operation at the time, despite being asked to do so by the Federal Energy Regulatory Commission.

Now, with the release of a map in June, the Bureau of Indian Affairs is questioning whether Duke purposely withheld maps in hopes of avoiding profit sharing with the tribe, according to a Bureau of Indian Affairs filing with the energy commission.

Duke denies that any portion of the Oconaluftee hydropower operation is on tribal lands. Duke Power has not yet filed a formal response to these claims, but Duke spokesperson Fred Alexander provided a written statement in response to questions for this article.

“According to the deeds, none of (Oconaluftee) Hydroelectric Project is on tribal lands,” Alexander wrote. “In 1924, the Tribe sold the land in question to the town of Bryson City, which built the project.”

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Duke’s own map filed with the energy commission shows the boundary of the hydropower operation extending well onto the reservation, however. While the town of Bryson City indeed bought land to build the dam and powerhouse, the boundary of the hydropower operation extends beyond that footprint, explained Mark Cantrell with the U.S. Fish and Wildlife Service. The boundary of the hydropower operation includes territory upstream that could potentially be flooded in high-water conditions, Cantrell said.

“No documentation of easement or flooding rights has been provided,” according to a Bureau of Indian Affairs filing with the federal energy commission, calling the “potential for inundation of tribal lands significant.”

This is the latest twist in an on-going controversy over Duke Power’s hydropower operations in the region. Duke’s permits to operate 11 dams in the region are about to expire. To get new permits, Duke is required to compensate the public for its use of the rivers and impact of the dams on the environment.

Duke wants to tear down the aging Dillsboro dam to mitigate for its other 10 dams. Duke has also agreed to release water on a regular schedule for kayakers and rafters on the Tuckasegee and Nantahala rivers.

While some are satisfied with this plan, others are not, including Jackson and Macon counties. Instead of tearing down the Dillsboro dam, they would rather see a trust fund established for environmental initiatives. Instead of releasing water for paddlers, they would rather see parks and greenways that would provide recreation for a greater cross-section of the public. The new permits will be good for up to 40 years, making the fight over mitigation a historic one.

If part of the Oconaluftee hydropower operation indeed lies on tribal lands, it gives the tribe greater leverage to demand more mitigation, according to conditions of the Federal Power Act. In a filing with the energy commission, the Bureau of Indian Affairs indicated it will exercise its right under the Federal Power Act to seek additional mitigation, but has not yet determined what that will be. New mitigation demands would be in addition to profit sharing.

The filing by the Bureau of Indian Affairs reflected frustration at being left out of discussion over mitigation thus far.

“If (Duke) desires to enter into discussion with the BIA regarding the management of the shoreline affecting the trust lands, the BIA would welcome (Duke’s) delayed and belated acknowledgment of BIA’s interests,” the filing stated.

Duke Power engaged a variety of stakeholders in discussion over mitigation for its dams on the Nantahala and Tuckasegee for three years. Duke hopes to count mitigation developed during those talks toward the Oconaluftee dam as well, but the Bureau of Indian Affairs was not happy about that idea.

“Since (Duke) has made no significant effort to engage the BIA in the development of such plans, the BIA intends to exercise its authorities and legal prerogatives to the fullest,” the filing states.

Alexander’s statement said that Duke will file a response with the energy commission soon that will “clarify various points raised.”

Mystery maps

Duke was required to provide a detailed map of the greater Oconaluftee hydropower area, but for three years has failed to do so. After failing to provide a clear map when applying for its dam permit in 2003, the energy commission in 2004 specifically asked Duke for a survey quality map.

Two years went by, however, before Duke Power got around to it. The map Duke finally provided last month still was not up to par. The map did not list any adjacent property owners, as the energy commission requested.

Instead, a dotted line demarcating the greater hydropower area was floating in a void on a sheet of white paper, making it difficult to tell where Duke’s hydropower boundary started and stopped.

So Cantrell, a biologist with the U.S. Fish and Wildlife Service, and John Boaze, a private biologist in Whittier contracted by the tribe, went to work with a computer mapping program.

Duke provided one helpful piece of information: elevations along the hydropower boundary. Cantrell and Boaze plugged the elevations into the mapping program and matched up the curves and bends of the river on Duke’s map with a real map. By their calculations, Duke’s hydropower boundary extended well onto tribal lands — from the dam upstream to the mouth of Goose Creek and the Birdtown bridge.

Such a discovery at this stage in the process was quite unexpected. Duke’s application for a new dam permit on the Oconaluftee has been in the works for several years, along with permits for 10 other dams in the region. The time to make new demands of mitigation from Duke has largely passed.

The Bureau of Indian Affairs blamed the late discovery on Duke’s failure to provide a proper map earlier.

“Duke Power has for a long time neglected to issue accurate project boundary maps for the Bryson Project even though the Commission has repeatedly requested these maps,” the Department of Interior stated in an energy commission filing. “In creating this delay, Duke Power has interrupted the disclosure of information sequence that is required by regulation because it failed to provide drawings and maps of the project until approximately June 12, 2006.”

Duke provided a map of some sort in 2003 when it first applied for a new dam permit. The caliber of that map is not known, however. Duke requested the map be withheld from the public citing homeland security concerns. If a map of the dam fell into the wrong hands, terrorists could blow up the dam and flood communities downstream, Duke said. Of course, the dam’s location is no secret. It is marked as a feature on most road maps of the region and visible from the side of the road.

The Bureau of Indian Affairs claimed there was no justification for withholding the maps from the public. By withholding the map, Duke “subverted its obligation” to engage the tribe and the Bureau of Indian Affairs to a greater extent in drafting the terms of a new permit, according to a filing by BIA with the energy commission.

Homeland security concerns have led Duke to withhold numerous documents, everything from maps to the company’s compliance with water quality standards, frustrating many who are following Duke’s permitting process.

The Oconaluftee dam isn’t the only dam Duke has failed to provide adequate maps for. The same goes for the Dillsboro dam, the Lake Emory dam in Franklin and the Mission dam on the Hiwasee.

These detailed maps are important and necessary, Cantrell said.

“The project boundary is an important part of how we assess the effects of the project on fish and wildlife and it helps determine the range of potential mitigation for the project’s effects,” Cantrell said.

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