Mainspring signs agreement in Ela Dam removal effort

from Smoky Mountain News | November 23, 2022

Resurrecting the joy of the holidays

BY HOLLY KAYS OUTDOORS EDITOR

After months of discussion and deliberation, Mainspring Conservation Trust and Northbrook Carolina Hydro II have signed an agreement allowing Mainspring to purchase the aging Ela Dam in Swain County — paving the way for dam removal efforts to progress.

In use since 1925, the dam is small, old and produces very little energy. Discussions about removing it began last year when Northbrook Power Management inadvertently released a massive amount of sediment that blanketed the downstream river, severely impacting aquatic communities living there. Afterward, Eastern Band of Cherokee Indians Secretary of Agriculture and Natural Resources Joey Owle approached Northbrook Carolina Hydro II about removing the dam. Northbrook proved willing to explore that option.

Owle spearheaded creation of a coalition to pursue dam removal, with Tribal Council unanimously approving a resolution to have the tribe lead removal efforts. The coalition had envisioned the EBCI as the end owner for the dam property, but when legislation seeking approval for that role came before the body in June, five of the 12 members voted against it and one walked out prior to the vote. The vote failed, and the entire project was in jeopardy. If removal efforts were to continue, Northbrook needed to start the process of transferring the property to a third party, and soon.

Now, Mainspring will be that third party. The agreement it signed with Northbrook provides Mainspring or its assign the option to buy the entire dam structure, lands and property for a nominal value — if available funding makes removal feasible and if regulatory agencies like the Federal Energy Regulatory Commission approve the action. The option expires in April.

Mainspring Executive Director Jordan Smith said that each of the partners in the EBCI-led coalition have been critical to success. Coalition members also include American Rivers, the N.C. Wildlife Resources Commission, U.S. Fish and Wildlife Service, Southern

Put into service in 1925, Ela Dam is now the subject of a dam removal effort led by the Eastern Band of Cherokee Indians. Erin Singer McCombs photo

Cherokee strengthens banishment law

BY HOLLY KAYS STAFF WRITER

In a unanimous vote during Annual Council Monday, Oct. 24, the Cherokee Tribal Council passed an ordinance to strengthen the tribe’s ability to enforce its banishment rules. It’s been refining the legislation since March and discussing the topic for much longer.

Native American tribes have the power to decide who is and is not welcome on their lands. In Cherokee this power is most often exercised against non-enrolled drug dealers, though tribal law gives Tribal Council broad authority to use this punishment. Prior to the update passed Oct. 24, Tribal Council could vote to banish any non-enrolled person “when necessary to protect the integrity and law and order on Tribal lands and territory or the welfare of its members,” but could banish enrolled members only for offenses related to drug trafficking and child sexual abuse. No tribal members are currently on the banishment list.

The new ordinance gives Council the authority to banish tribal members for the same breadth of reasons that apply to nonmembers, but it also gives it more discretion over the impact of that banishment. Previously, the statute read that a banished member’s name “shall” be removed from the membership roll, but now the law says that the name “may” be removed. Tribal Council may choose to exclude banished persons permanently but can also make the banishment effective for a more limited period of time.

The ordinance also strengthens the punishment for defying a banishment. Anybody who harbors an excluded person will serve at least 30 days in prison and up to a year, or a $5,000 fine (formerly a six-month maximum and seven-day minimum sentence). A person who violates a banishment order against them will serve at least 30 days in jail and up to a year, or a $5,000 fine (formerly a six-month maximum with no minimum sentence). Anybody who helps an excluded person access tribal benefits or services will serve at least 30 days and up to a year in prison, or a $5,000 fine (formerly no minimum sentence). The new ordinance removes a provision that would allow a person who helps a banished person obtain services to be excluded for a term equal to the term originally imposed on the banished person.

To make it harder for non-members to violate exclusion orders, the new law requires landlords to check a newly created EBCI Exclusion Registry before renting to non-enrolled people for more than 90 days out of a year.

The registry, whose creation the new ordinance mandates, will be kept and maintained by The Cherokee One Feather. This publicly available digital registry must “at a minimum” contain the name of each excluded person and the date their banishment was effective. It “should” also contain a photograph and other identifying information for each person, along with the resolution’s number and a copy of the resolution.

Better enforcement for banishments has been a topic of discussion for years on the Qualla Boundary, with One Feather Editor Robert Jumper frequently opining on the topic in his editorial page. In a Dec. 1, 2015 piece, Jumper wrote about his quest to get a copy of the current banishment list, something he assumed would be a simple task. But, after contacting four tribal offices and departments, he came up empty.

“As I visited these offices, I began to realize that there does not seem to be an official mechanism or procedure in place to prevent those who are banished from re-establishing themselves on tribal land,” Jumper wrote.

The One Feather eventually got a list, but in the years since Jumper has written that a list of names does little good without photographs and other information the public needs to know if they’ve spotted a banished person.

“I urge our Tribal Council to mandate that a photo or physical description be attached to all resolutions for banishment and that information become a matter of public record once the resolution is ratified,” Jumper wrote in an Aug. 6 column on the topic. “That would at least give the community a way to identify someone who has been deemed a threat to their land and people. Until we make banishment a real hinderance to those who are a threat to our community, it is no more than a minor inconvenience to those who chose to exploit and attack the Qualla Boundary and its citizens.”

The ordinance Tribal Council passed last month gives legal weight to Jumper’s suggestions, and now that it has been signed by Principal Chief Richard Sneed, it is tribal law.

Environmental Law Center and others.

“As a land trust, we are used to owning assets,” Smith said. “American Rivers brings their expertise in managing dam removals while the N.C. Wildlife Resources Commission and U.S. Fish and Wildlife Service have supported the initiative from day one, identifying and providing funding and prioritizing this project within their offices. And without the leadership from the EBCI and Northbrook’s willingness to essentially contribute the property to the effort, we absolutely could not move forward. This is truly a team effort.”

Removing Ela Dam was one of the first ideas Owle pitched to his team when he was named secretary in 2017. Doing so would open 549 river miles of the Oconaluftee River and its tributaries, connecting streams across the Qualla Boundary and parts of the Great Smoky Mountains National Park to the lower Oconaluftee and Tuckasegee Rivers. Culturally important fish species will now have access to spawning areas in upstream tribal waters after nearly a century of disconnection.

“The accidental sediment release coincided with an unprecedented funding opportunity from the Bipartisan Infrastructure Law,” Owle said. “That, coupled with determined parties all around ready to pursue the idea of reconnecting 188 square miles of the watershed through a social and environmental justice lens, was perfect timing. I am grateful that Chuck Ahlrichs (of Northbrook) took my call in December 2021, and with a team of exceptional partners, we were able to come together to create an opportunity from the ground up.”

The dam was initially constructed to support rural electrification. But now, the social, economic and environmental values of reestablishing a free-flowing Oconaluftee River vastly outweigh the one megawatt of output it generates, the coalition believes. Northbrook also wanted to improve relations with organizations and agencies that work to protect and improve the nation’s rivers.

“Removing a dam is the fastest way to bring a river back to life,” said Erin McCombs, Southeast Conservation Director with American Rivers. “This project is one of the most exciting river restoration efforts in the U.S., with tremendous benefits including improved water quality, habitat for imperiled fish and wildlife and cultural reconnection.”

According to American Rivers, 56 dams have been removed in North Carolina to restore river health. If this project is successful, it may serve as a template for how dam owners can work cooperatively with American Rivers and other partners to decommission dams when the value of a free-flowing river outweighs a dam’s power generation.

Now that the purchase agreement is signed, the coalition can work on the next phase of project planning. With funding from the North Carolina Wildlife Resources Commission, American Rivers is leading the design and engineering studies for dam removal while the coalition moves forward with planning and regulatory approval processes.